Patristic teaching on Divorce and Remarriage

Juraj Kamas, The Separation of the Spouses with the Bond Remaining, pp. 31-69

Chapter II

The attitude of the early Church towards marital separation

1. Ante-Nicene period

Jesus' mandate to preach the Gospel to all nations (Mt 28,19-20) found its realization in the spread of the Christian faith among non-Christian peoples and in the transformation of every aspect of their lives together with the establishment of Christian communities and Church structures. An important part of this effort was the implementation of the marital and family ethics. The essential deposit of faith, which had ended with the death of New Testament writers, had found its first continuation and further doctrinal development in the patristic literature. The teaching of the fathers and other ecclesiastical writers in high positions of authority depended totally on the Scriptural texts as the primary and essential sources where they looked for the defense of Christian marriage and its indissolubility against pagan customs. As exponents of Christian doctrine they sought to do the same as Jesus did: to restore marriage to its proper position.¹

The patristic authors, in their echo of the Synoptic and Pauline tradition and by their position in the Church, influenced the teaching and legislative process of the councils and popes that followed. «In this sense, their writings formed an authoritative source of canon law, but not a constitutive or legislative source».² Their writings contain important information on the development of the teaching and discipline regarding the canonical separation of consorts. There is a certain evidence that from the end of the third century the ecclesiastical synods and the Roman Pontiffs promulgated disciplinary laws concerning the matrimonial bond, separation of the spouses, and related matters. This activity is to be seen as a part of the Church's constant mission and duty to determine the true Christian doctrine as well as the principles of behavior and apply them to concrete circumstances and daily situations.

¹ See J.P. DELAZER, «De indissolubilite», 441.

² C. VanDe WlEL, History of Canon Law, 21. The same opinion is expressed by Stickler. He writes: «Eminent inter documenta non stricte iuridica scripta SS. Patrum Apostolicorum, Apologetarum, SS. Patrum Orientis et Occidents, Scriptorum ecclesiasticorum [...] de quibus manualia Patrologiae tractant. Revera haec scripta pro maxima parte indigent adhuc inquisitionibus specialibus sub respectu iuridico, ut totum eorum patrimonium iuridicum, traditio iundica latens patefiat [...] Inter fontes matenal es pnncipal es absque dubio inde ab initio Concilia eminent». A. Stickler, Historia, 12-13.

1.1 Socio-judical background of the Patristic period

Christianity was born into the Hellenistic-Roman world. The Church at the close of the apostolic age recognized to a very great extent existing cultural concepts and civil legislation.³ However, the atmosphere and epoch, into which the Church had entered and grown up, were completely opposed to the principle of the indissolubility of marriage, because society did not necessarily consider marriage to be an indestructible union and permanent relationship. A new marriage was considered quite natural.⁴ Certainly, in order to eliminate the divorce mentality among Christians, the Church had to intervene by means of catechesis and preaching. For better understanding, it seems useful to present several brief observations of a general character on how divorce was understood by the Romans at the time, when the Church started to penetrate the Roman world until the collapse of the Empire.

Among the Romans marriage, as a strictly monogamous union, was established by the reciprocal consent of the man and woman, which was its essential and central element.⁵ One of the Roman definitions of marriage stated that this marital consent successively manifested by an actual common matrimonial will, affectio maritalis,⁶ continues in the course of one's whole life as long as the intention of being married existed between the parties.⁷ Conjugal cohabitation was understood as forming a permanent and intimate common mode of life with all reciprocal moral and social relations, together with the procreation and education of children.⁸ If the continuous intention and the actual will to be married, that is, to live together as husband and wife, has disappeared, the marriage juridically ceased too. The parties them selves could, by their mutual consent, bring about the destruction of the matrimonial bond.⁹ Mere separation or suspension of cohabitation did not constituted a divorce. It must be clear and direct consent to put an end to the marriage.¹⁰

The dissolution of the bond could be equally effected by a voluntary mutual consent of both parties or at the initiative of one party. Bilateral divorce occurred when both spouses agreed to bring their union to a definitive end. In this case the term employed was divortium ex consensu. Unilateral divorce, called repudium, happened when only one of the spouses took the initiative to terminate their living together.¹¹ Such a termination of the common conjugal life signified also the severance of the marriage itself. The same was true also in the cases when conjugal living was impeded by other reasons, for example, certain types of criminal sentence, captivity, prolonged absence, and military service.¹²

A dismissal or separation without the right to form a new union was unknown in the Roman law. Thus, the Roman juridical conception of divorce provided more difficulties for the Church than the Jewish one, because the liberty of marriage, liberum matrimonium, involved the right to divorce at any time.¹³ Contrary agreements to this were void.¹⁴

Under Roman law, marriage was viewed as a private matter. It took place without the intervention of the state. Likewise, there were neither a juridical form nor other prescribed requirements for valid divorce, but only an oral declaration. As marriage could be celebrated privately, similarly divorce was an act of the parties alone without any intervention of the judicial or any other public authority. Marriage was dissolved through the personal intention to not live as husband and wife.¹⁵ The Roman law of marriage did not have the precise list of the reasons for divorce and the cases when divorce is prohibited.¹⁶ There was no prohibition of repeated divorce. After the divorce, either party could marry again, but a woman had to wait one year before she contracted a new marriage.¹⁷ The reason for the prescribed period was to prevent turbatio sanguinis by a second marriage.¹⁸ The inevitable con sequence of such a pro-divorce mentality was a serious problem for the total conversion of people to Christianity.

The nascent Church had adopted the Roman law on what constitutes the marriage, that is, marriage based on the will of a man and a woman to be husband and wife.¹⁹ The Church added to this understanding of marriage the New Testament's principle of the indissolubility. Apparently, the marriages of the Christians were formed and regulated by civil laws and local wedding customs, excepting those elements which were incompatible with Christian doctrine. Thus, the Church could in no way accept an imperial legislation on divorce and remarriage.²⁰ The well-grounded testimony of an unknown author in the Letter to Diognetus describes how Christian life differs from the pagan mentality: «They marry like all others and beget children; but they do not expose their offspring. Their board they spread for all but not their bed. They find themselves in the flesh but they do not live according to the fiesh».²¹

This tension between the morality of Christians and conduct of non- Christians, between the Church teaching and customs of the pagan society, could not be solved at once. However, history offers evidence of the impact of Christianity upon human society. From her very beginning the Church possessed an increasing awareness that marriages in the Lord are enriched with some special quality and with such a degree of firmness that the dissolution of marriage is impossible. The early Church seems to have attempted to influence Christians to marry Christians. Two believers are to give themselves unreservedly to each other for their whole life. For them marriage was not simply a legal agreement, but a sacrament, involving unbreakable commitment to live together and never to break it off. Every subsequent union during the life of both spouses was considered by the early Church as a grave injury toward the prior one. Since the principle of indissolubility in Christianity is a general rule without any possible exception, the only possible remedy in the case of incorrigible infidelity or the cruelty of one partner was the separation but without the right of remarriage (I Cor 7,10-1 1). On the other hand, divorce was legally available in the civil forum also to Christians, as for the others in the Roman world, and did not cease as a practice among them.

³ See D.J. Doherty, Divorce, 37-38.

⁴ U. Navarrete writes: «Quod autem tota Ecclesia in primis saeculis et postea Ecclesia Occidentalis strenue laboravit pro doctnna indissolubilitatis matrimonii necnon quod efficaciter contra abusus divorcistas protestata est, irrefregabiliter probatur ex facto historico quod contra mentalitatem maxime divorcistam mundi romani [...] assecuta est inducere doctrinam et disciplinam absolutae indissolubilitatis matrimonii christiani». U. Navarrete «Indissolubilitas», 461-462.

⁵ «Nupuas non concubitus sed consensus facit». Ulpianus, Digestum 50,17,30.

⁶ «It was this marital intent which distinguished matrimonium from all other forms of cohabitation». D.E. Fellhauer, «The Consortium», 12.

⁷ The Roman definition of marriage, first found in the jurist Modestinus (f273 AD), defines marriage as follows: «Nuptiae sunt coniunctio maris et feminae, et consortium omnis vitae, divini et humani iuris communicatio». Digestum 23,2,1; See O. Robleda, «Divortium», 351; «All commentators agree that such perpetuity of marriage was indeed meant intentionally inasmuch as Roman law never admitted marriage for a specified period or under a resolutive condition». C.J. Scicluna, The Essential Definition, 42.

⁸ See P. Bonfante, Istituzioni di Diritto Romano, 180; D.F. O'Callaghan, «Marriage, Institution or Contract?», 266.

⁹ «Matrimonium Romanum, etsi sit solubile in omni momento, tempore classico sine causa, tempore postclassico cum causa, tendentiam habet indissolubilitatis». J. Huber, «Coniunctio», 405.

⁹ «Matrimonium Romanum, etsi sit solubile in omni momento, tempore classico sine causa, tempore postclassico cum causa, tendentiam habet indissolubilitatis». J. Huber, «Coniunctio», 405.

¹⁰ For more see G. BRINI, Matrimonio, III, 118-127; F. Delpini, Divorzio, 24; D.F. O'Callaghan, «Marriage, Institution or Contract?», 266.

¹¹ Gaius defines divorce as follows: «Divortium autem vel a diversitate mentium dictum est vel quia in diversas partes eunt, qui distrahunt matrimonium». Digestum 24,2,1; Modestinus: «Divortium inter virum et uxorem fieri videtur; repudium vera sponsae remiti videtur». Digestum 50,16,101; See B. Cohen, Jewish and Roman Law, 387; J. GarcIa SANCHEZ, «El divorcio», 156-157.

¹² See P.E. CoRBETT, The Roman Law of Marriage, 30.21 1-217.

¹³ See W.E.H. Leckey, History, II, 326; T P. DOYLE, «The Individual's Righto, 254.

¹⁴ A rescript of the Emperor Severus Alexander (222-235 A D.) declares: «Libera matrimonia esse antiquitis placuit. Ideoque pacta, ne liceret divertere, non valere et stipulationes quibus poenae inrogarentur ei qui divortium fecisset, ratas non haberi constat». Codex 8,38,2; SeeF. SCHULTZ, Classical Roman Law, 132.

¹⁵ «What was required was not that the parties merely cease living together, but that they intend to put an end to the marriage». D.E. Fellhauer, «The Consortium», 12.

¹⁶ See, for instance, B. Nicholas, An Introduction to Roman Law, 87; F. Delpini, Divorzio, 29.34-35.

¹⁷ See Codex Theodosianus, ed. P. Kriiger - T. Mommsen, 3,8,1.

¹⁸ See F. Schultz, Classical Roman Imw, 136.

¹⁹ For example, St. John Chrysostom repeats the Roman consent theory of marriage in these words: «Nuptias non facit coitus sed voluntas». St. John Chrysostom, Diatriba, Homilia 32, in PG 56, 802. The same oppinion was expressed by St. Ambrose: «Non defloratio virginitatis facit coniugium sed pactio coniugalis». St. Ambrose, of the Institutions of the Virgin, 6, in PL 16, 316

²⁰ «Christians were subject to and followed the Roman law of marriage until the collapse of the empire, the Church immediately began to construct a morality of married life that radically differed from that of the Roman world and from any of the ancient civilizations which preceded Rome». T P. Doyle, «The Individual's Right», 255-256.

²¹ «Uxores ducunt, ut omnes, et liberos procreant; sed non abjiciunt fetus. Mensam communem apponunt; minime vero cubile. In carne sunt; sed non secundum carnem vivunt». Anonymus, Epistola ad Diognetum, cap. 5, in PG 2, 1174, trans. ACWVl, 127.

1.2 Ante-Nicene writers on separation

To understand the reading of the numerous testimonies from the patristic period, it is useful to keep in mind the fact that terminology was not precise at that time as it is in contemporary usage. Thus the word divorce can sometimes be found used as for the dissolution of the bond as for separation with the bond remaining intact. Likewise it is necessary to pay attention to the terms second or subsequent marriage as well as remarriage so to not confuse those who married after the death of a first partner with remarried divorcees. To obtain a clear knowledge of the position of various writers, it is also necessary to see whether the authors examined explicitly stated that the divorcees can enter into a new marriage. Therefore if they say that the adulterous spouse is to be dismissed, it does not automatically mean that the innocent party is free to remarry.²² In spite of ambiguity in the use of vocabulary, it is evident in the patristic sources that the termination of common conjugal living does not bring about the dissolution of marriage.

The authors of the early Christianity can be divided according to four well- organized centers of the Church: Antiochia, Rome, Alexandria, and North Africa. They present a picture of the visible organized life of the Christian communities under the bishop-president as the central ecclesiastical authority.²³

1.2.1 The Antiochians

The earliest post-New Testament reference about the pastoral care of marriages comes from one of the most prominent figures in the Antiochian Church, St. Ignatius (35-1 07).²⁴ In his personal letter to Polycarp, bishop of Smyrna, Ignatius expressed his pastoral concern for Christian marriages and required that proposed marriages should be contracted with the bishop's approval, so that their union may be according to the will of the Lord and not according to their passionate enjoyment.²⁵ Ignatius' short statement clearly shows that the Church leaders of that epoch were aware of the uniqueness of Christian marriage and tried to introduce a certain pastoral preparation for it. However, it does not prove that the early Church exercised some jurisdiction over marriages or required some formal liturgical blessing by the bishop.²⁶ Christian couples went through the civil formalities which gave the legal validity to their marriage in secular society, and then they received the bishop's blessing during the regular Sunday liturgy.²⁷ A simple repetition of the first Matthean text on divorce is spelled out by the Syrian bishop, St. Theophilus of Antioch (f 183). In the last of his three apologetic books entitled Ad Autolycum, he reversed the sequence of two sentences of Matthew 5,32, probably because he was quoting from memory. «Whoever marries, the Gospel says, a divorced woman commits adultery; and everyone who divorces his wife, except on the ground of unchastity, makes her an adulteress».²⁸ Some authors see in Theophilus' intervention into the sacred text his effort to eliminate any ambiguity of the problematic Matthean clause and thus interpret it in the sense that every marriage to a divorcee is adulterous.²⁹

²² «Therefore, one must consult the context to ascertain what they meant. [...] If we are going to maintain that a particular Father of the Church permitted remarriage in case of adultery, it is not enough to point out that he says that the spouses can or should separate through divorce. He would have to say in addition that a divorced spouse may legitimately and in accordance with the Christian faith contract a new marriage while the other spouse lives». E. Hamel, «The Indissolubility», 185; See F. DELPINI, Divorzio, 55- 56; P. Adnes, «De indissolubilitate», 195-223.

²³ See H. Hess, «The Early Expression», 31.

²⁴ He was probably a disciple of the Apostle John and became the third bishop of Antioch in Western Asia Minor. See J.B. Lightfoot, The Apostolic Fathers, U, 29.

²⁵ «Decet vero ut mariti et maritae, cum episcopi arbitrio coniugium faciant; quo nuptiae juxta Dominum sint, non autem juxta cupiditatem». St. IGNATIUS OF ANTIOCH, Ep. Suscipiens propositum ad Polycarpum, 5, in PG 5, 867.

²⁶ See AG. Martimort, «Contribution», 131; J.K. Coyle, «Marriage», 77.

²⁷ See A. MAVRAKIS, The Law, 34-35.

²⁸ « Vox autem evangelica intentius de castitate praeceptis his verbis: Quisquis aspicit uxorem alienam ad concupiscendum eam, jam moechatus est eam in corde suo: et qui ducit, inquit dimissam a viro, moechatur, et quid dimittit uxorem, excepta fornicationis causa, facit eam moechari». St. Theophilus of Antioch, Ad Autolycum, Lib. 3, cap. 13 «De castitate», in PG 6, 1 139.

²⁹ See F. DELPINI, Indissolubility, 69; A. Cornes, Divorce and Remarriage, 228; A. J. BEVILACQUA, «The History», 271.

1.2.2 The Romans

St. Justin (ca. 100-165) was a layman known as a Christian philosopher and apologist, who died as a martyr in Rome. His two main writings, Prima et Secunda Apologia, are addressed to the Roman Emperor Antoninus Pius, the Senate and the whole people of Rome. In his remarkable First Apology Justin quotes Jesus' sayings on divorce as they are recorded in the Gospels and then emphasizes that all those who contract a second marriage according to human laws are sinners in the eyes of the Master.³⁰ Since this passage follows after the Gospel's quotations on divorce, it is clear that Justin speaks here against the second marriage after a divorce and not after the spouse's death. Moreover, he clearly distinguishes between Roman law and the Gospel. The civil law allows divorce with remarriage, but Jesus forbade remarriage and regarded it as sin. From the fact that both laws are put in opposition, he concludes that Christians were not permitted to avail themselves of the opportunity offered by the secular laws and customs.

Another significant text comes from his Second Apology. Here Justin refutes the accusation raised against a certain Christian woman who was charged by her husband because she repudiated him according to the practice of Roman law. Justin relates that after her conversion to Christianity she gave up her previous infidelity, but her non-Christian husband went on in his immoral behavior. Justin approved her termination of the matrimonial connection with her adulterous husband in order not to participate in his sinful way of life. Nothing is said about her remarriage.³¹ It is important to note that according to St. Justin both spouses are considered equal and the same right applies to both.

The first commentary on Jesus' doctrine on the indissolubility of marriage and the earliest statement on separation without remarriage is found in the Shepherd of Hermas, the most remarkable of the post-Apostolic writings.32 As a Christian author he summarizes how Christian life should be lived.³³ The Shepherd of Hermas is particularly significant because of its influence on the thought of the period before the First Nicean Council.³⁴ The whole work is divided into three parts: Visions, Commands, and Parables. In the fourth Command, Hermas asks the Angel of Penance whether it is permissible for a Christian husband to divorce his adulterous wife. The Christian notion of marriage and divorce appears in sharp contrast to the hellenized Jewish environment of that time. It is worthwhile quoting the whole conversation that runs as follows:

Sir, if a man has a wife who believes in the Lord and detects her in adultery, does the husband sin if he continues to live with her?

So long as he is unaware of it, said he, he does not sin. But if the husband knows of her sin, and the wife does not repent, but persists in her immorality, and the husband continues to live with her, then he becomes involved in her sin and a sharer in her adultery.

What, then, sir, said I, is the husband to do, if the wife persists in this attachment?

He must divorce her, said he, and the husband must live by himself; but if after divorcing his wife, he marries someone else, he too commits adultery.

If then, sir, said I, after the wife is divorced, she repents and wishes to return to her own husband, will she be taken back?

Certainly, said he, if her husband does not take her back, he sins, and involves himself in a great sin. Why, the sinner who repents must be taken back, but not often, for the slaves of God can have but one repentance. So for the sake of her repentance, the husband ought not to marry. This course of action is incumbent on wife and husband.³⁵

The question raised is not about the effect of the termination of marital life in the case of adultery, whether or not it is the efficacious cause for the dissolution of matrimonial bond. The question is about the attitude of the innocent party to the adulterous one.³⁶ The Shepherd of Hermas testifies to the theological and disciplinary preoccupation and investigation of the early Roman Church. The early Church was aware that Jesus rejected remarriage no matter what the case. Adultery can disrupt a common conjugal life but this does not signify that the marital bond is also dissolved. If there is evidence of continuous immoral behavior the innocent spouse must dismiss an unrepentant adulterous partner. A dismissal is not understood as dissolution of the marriage bond but only the separation of the spouses without possibility to enter into a new union. In the case of a notorious adultery, separation is obligatory in order not to be an accomplice in the sin of the other.

The Shepherd of Hermas demands the restoration of the marriage relationship if the adulterous and dismissed partner shows repentance for sinful acts and wants to return to normal marital life. A possibility of repentance makes the prohibition of remarriage much stricter and is the reason why the innocent party should remain single.

³⁰ «Quemadmodum etiam ii qui ex lege humana duplex matrimonium ineunt, ita et qui mulierem aspiciunt ad concupiscendum eam, peccatores sunt apud Magistrum nostrum». ST. JUSTIN, Apologia Prima, 15, in PG 6, 350.

³¹ See St. Justin, Apologia Secunda, 2, in PG 6, 443-444.

³² Arendzen writes that «it is the oldest commentary on the Matthean Sayings, written within a century of the Gospel of St. Matthew itself. [...] There are at least two Latin versions, the older being about A.D. 200». J.P. ARENDZEN, «Ante-Nicene Interpretations», 231.

³³ The Muratorian Fragment (4,74) declares that «Pastorem vero nuperrime, temponbus nostris, in urbe Roma Herma conscripsit, sedente cathedra urbis Romae ecclesiae Pio episcopo fratre eius». See L. Duchesne, Le liber pontificalis, I, 132.

³⁴ It spread rapidly among the faithful and was frequently read in the Christian communities and used as a part of catechumenical preparation. Clement of Alexandria, Irenaeus, Tertullian and Origen treated the Shepherd as a canonical document divinely inspired. See J.P. Arendzen, «Ante-Nicene Interpretations», 231; P. F. Palmer, «Rethinking the Marriage Bond», 41; E.J. GoODSPEED, The Apostolic Fathers, 99; A.J. Bevilacqua, «The History», 253; J.S. JEFFERS, Conflict at Rome, 107.

³⁵ «Et dixi illi: Domine, si quis habuerit uxorem fidelem in Domino, et hanc invenerit in adulterio, numquid peccat vir, si con vi vat cum illa? Et dixit mini: Quamdiu nescit peccatum ejus, sine crimine est vir vivens cum illa. Si autem scierit vir uxorem suam deliquisse, et non egerit poenitentiam mulier, et permanet in fornicatione sua, et convivit cum illa vir; reus erit peccati ejus, et particeps moechationis ejus. Et dixi illi: Quid ergo, si permanserit in vino suo mulier? Et dixit: Dimittat illam vir; et vir per se maneat. Quod si dimiserit mulierem suam et aliam duxerit, et ipse moechatur. Et dixi illi: Quid si mulier dimissa poenitentiam egerit, et voluerit ad virum suum reverti; nonne recipietur a viro suo? Et dixi mihi: Imo, si non receperit eam vir suus, peccat, et magnum peccatum sibi admittit; sed debet recipere peccatricem quae poenitentiam egit: sed non saepe. Servis enim Dei poenitentia una est. Propter poenitentiam ergo non debet, dimissa conjuge sua, vir aliam ducere. Hie actus similis est in viro et in muliere». HERMAS, Hermae Pastor, Lib. 2., Mandatum 4, cap. 1, in PG 2, 919-920; trans. E.J. Gcxddspeed, The Apostolic Fathers, 126.

³⁶ See J.P. Delazer, «De indissolubilitate», 442.

1.2.3 The Alexandrines

A Christian philosopher Athenagoras (2nd century) was the first master of the catechetical school in Alexandria. Chapter 33 of his apology, called Legatio pro Christians addressed to the Emperors Marcus Aurelius Antonius and Lucius Aurelius Commodus, is dedicated to the commentary on the New Testament texts about divorce. Athenagoras emphasizes morals of Christian spouses and defends monogamy against remarriage, underlining two explicit prohibitions for the husband, namely, to dismiss a wife whose virginity he had ended, and to remarry another woman. The fact of consum mation builds up an insuperable barrier for remarriage. Athenagoras then went beyond the Scriptural teaching on indissolubility. According to him, marriage does not end by divorce nor by the death of the first spouse. He calls remarriage in whatever life situation as the adultery in cloak.³⁷

A significant Christian writer, leader of the catechetical school, and the teacher of Origen, Clement of Alexandria (150-215) reflects and expresses the common opinion of his province on the permanence of marriage. Alluding to Matthean texts he explicitly states that the Scriptures counsel marriage and allow no release from it. Remarriage following divorce for any reason even in the circumstance of marital infidelity is adulterous.³⁸ In his third book of the Stromata, Clement understands the Matthean exception not in the sense of permission to remarry in the case of adultery but only as the separation without entering into a new marital union.³⁹

Adamantius Origen (185-254) is the greatest biblical expert of the third century and well-known for his work Hexapla of the Old Testament. He became Clement's successor and thus the principal representative of the Alexandrian School. Origen addresses the separation and remarriage issue directly. In his Commentary on the Gospel according to Matthew he condemned the local practice of some tolerant Church leaders in Egypt, who permitted a remarriage to a divorced woman whose first husband was living. Origen points out that such permission is opposed to the Creator's intent and to the teaching of the New Testament.⁴⁰ Origen wrote that Jesus did not allow an interruption of common conjugal life for any reason.⁴¹ In his view, remarriage is impossible, also in the case of adultery, because a divorced and remarried woman and a man married to a divorced wife would live in the state of adultery. Origen clearly states that those second unions are merely concubinage and in no case the real marriages because of the continued existence of the prior ones.⁴²

³⁷ «Quicumque enim dimiserit, inquit, uxorem suam et aliam duxerit, moechatur; nec eam dimitti sinens, cujus virginitati finem quis imposuit, nec aliam insuper duci. Nam qui se ipse prima uxore spoliat, etiamsi mortua sit, occulta quadam ratione est adulter; tum quod manum Dei transgrediatur (nam initio Deus unum hominem finxit an unam mulieram), tum quod carnis cum carne conjuctionem quodam veluti vinculo ad commiscendum genus colligatam dissolvat». Athenagoras, Legatio pro Christianis, 33, in PG 6, 967-968.

³⁸ «Quod autem consulit Scriptura uxorem ducere, et nec a conjugio, unquam permittit discedere, legem aperte constituit: Non dimities uxorem, praetequam propter fornicationem . Adulterium autem existimat conjungi matrimonio, dum vivit alter ex separatis». Clement of Alexandria Stromata, Lib. 2, 23, in PG 8, 1095.

³⁹ See Clement of Alexandria, Stromata, Lib. 3, 6, in PG 8, 1 150-1 156.

⁴⁰ «Jam vero contra Scripturae legem, mulieri vivente viro nubere quidam Ecclesiae rectores permiserunt, agentes contra id quod scriptum est, in quo sic habetur: "Mulier alligata est quanto tempore vir ejus vivit", et contra illud: "Igitur vivente viro mulier vocabitur adultera, si fuerit cum alio viro"; non omnino tamen sine ratione, haec enim contra legem initio latam et scriptam, ad vitanda pejora, alieno arbitrio morem gerentes eos permisisse verisimile est». Origen, Commentarius in Evangelium secundum Matthaeum, 14, 23-24, in PG 13, 1246.

⁴¹ «Verum et illud quoque: Quod Deus conjunxit, homo non separet, prohibeat quominus qualibet ex causa uxorem repudiarent». Origen, Commentarius in Evangelium secundum Matthaeum, 14, 16, in PG 13, 1228.

⁴² See Origen, Commentarius in Evangelium secundum Matthaeum, 14, 24, in PG 13, 1246.

1.2.4 The Africans

The situation in the North African Church and especially in the Christian community at Carthage is reflected by Quintus Septimius Florens Tertullian (155-225), who advanced the Church's thinking on marriage and earned the title father of Latin theology.⁴³ Tertullian defines a marital union in the following way: «A marriage is had when God joins two together in one flesh or, finding them already united, blesses their union».⁴⁴ Marriage of Christians is, moreover, in a relationship with their faith. It is the marriage that «the Church arranges, the Sacrifice strengthens, upon which the blessing sets a seal, at which angels are present as witnesses, and to which Father gives His consent».⁴⁵

Before he became a Montanist, he dedicated two books to his wife Esther. In his first book, Ad uxorem, he holds that any contrary practice to lifelong monogamous matrimonial bond has been abrogated through the Gospel.⁴⁶ For Tertullian, a second marriage after the death of a spouse was an obstacle to holiness,⁴⁷ and after divorce it was nothing else than a kind of fornication.⁴⁸ His unfavorable position on remarriage is well defended in the second book Ad uxorem. In his opinion the practice of continence is more virtuous.⁴⁹

A further work of Tertullian, De monogamia,⁵⁰ corroborates his previous statements about divorce and remarriage. Tertullian believed that spouses united in «sealed marriages» can be separated only by the Lord, who uses not the method of divorce but the natural means of death.⁵¹ If only death can end a marriage, the union after divorce is not a legitimate marriage. Influenced by Scriptural texts, Tertullian emphasized that Jesus explicitly abolished divorce and strengthened what was from the beginning — the inseparable union of two in one flesh.⁵² Following the same line of thought he explains the Matthean clause as the permission to divorce in the case of adultery but not to remarry. He says:

So it is true that divorce was not from the beginning, that among the Romans it is not until the six hundredth year after the foundation of the city that the first instance of such cruel conduct is recorded. They committed adultery, however, although they did not divorce; we, on contrary, do not even permit remarriage, though we do allow divorce.⁵³

Tertullian was unaware of any exception. The same opinion, that Jesus permitted only a dismissal of one's partner without intention to remarry, is expressed in Tertullian's other book, Adversus Marcionem. Tertullian ex plains that put away does not mean that another wife may be obtained. The dismissal of a spouse is one thing, and the dissolution of marriage bond is another. «Therefore to marry somebody else while the marriage is undissolved is commit adultery».⁵⁴

Tertullian enumerates other grounds for which the practice of the African Church allowed separation: marital discord, anger, hatred, injury, insult, some kinds of accusations.⁵⁵ He sees the impossibility of remarriage and its sinfulness in the fact, that despite physical separation, husband and wife remain ever present in their hearts and still possess the soul of each other.⁵⁶

St. Cyprian (ca. 200-258) was a Metropolitan of Carthage in Africa. In his book, The Testimonies to Quirinius, which contains a collection of many Scriptural passages, he quotes from the First Letter to the Corinthians and then clearly demands that a Christian wife should not depart from her husband. When some circumstances render a marital separation inevitable, the spouses are to remain unmarried.⁵⁷ Cyprian made no mention of possible remarriage. He seemed quite unaware of any difficulty arising from the Matthean texts.

Lucius Caelius Firmianus Lactantius (ca. 250), African rhetorician and teacher of Constantine's son Crispus, composed his principal apologetic work in seven books that might be entitled An Introduction to the True Religion. In the sixth book he speaks about the issues of marital life and clearly emphasizes the fidelity of the spouses. Christians are to obey not only civil law but, in the first place, the law of God.⁵⁸ And this «divine law so joins two with equal right in a marriage, which is two in one flesh, that who ever ruptures the joining of the body is regarded as an adulterer».⁵⁹ Then Lactantius freely repeated the Matthean clause. Reading it in the whole context of Matthew 23 makes it evident that Lactantius is against divorce with remarriage even for adultery.⁶⁰

Later, Lactantius himself summarized his monumental work in the Epitome. He repeats the opinion that the conjugal union should not be dis solved. But this time the Matthean clause seems to be interpreted as the relaxation of the general principal opposing the breaking of the marital bond in a case of sexual infidelity. However, nothing is said about remarriage.⁶¹

⁴³ His writings on marriage belong to two periods of his life: when he was an orthodox Catholic and when he became a heretical Montanist. During both periods Tertullian insisted on the unity and indissolubility of the monogamous marriage.

⁴⁴ «Matrimonium est, cum Deus jungit duos in unam carnem, aut junctos deprehendens in eadem carne, conjunctionem signavit». Tertullian, De monogamia, 9, in PL 2, 941. Le Saint translates the phrase coniunctionem signavit as «blesses their union». He notes, it literally means to «place a seal upon». SeeACfVXHl, 161-162.

⁴⁵ «Unde sufficiamus ad enarrandam felicitatem ejus matrimonii, quod Ecclesia conciliat, et confirmat oblatio, et obsignat benedictio, angeli renuntiant, Pater rato habet?». Tertullian, Ad uxorem II, 9, in PL 1, 1302; trans. ACWXLU, 35.

⁴⁶ «Igitur per licentiam tunc passivam, materiae subsequentium emendationum praeministrabantur, quas Dominus Evangelio suo, dehinc Apostolus in extremitaubus saeculi aut excidit redundantes, aut composuit inconditas». TERTULLIAN, Ad uxorem I, 2, in PL 1, 1277.

⁴⁷ See Tertullian, Ad uxorem I, 7, in PL 1, 1285-1286.

⁴⁸ «Si penitus sensus ejus interpretemur, non aliud dicendum erit secudum matrimonium, quam species stupri». TERTULLIAN, De exhortatione castitatis, 9, in PL 2, 924.

⁴⁹ «Respectu humanae intirmitatis, quarumdam exemplis admonentibus, quae divoruo vel mariti excessu, oblata continentiae occasione, non modo abjecerunt opportunitatem tanti boni, sed ne in nubendo quidem rursum disciplinae meminisse voluerunt, ut in Domino potissimum nuberent». Tertullian, Ad uxorem II, 1, in PL 1, 1289. The same opinion is expressed in De exhortatione castitatis, 9, in PL 2, 924-925.

⁵⁰ This work was written about one hundred and sixty years from the date of Paul's first letter to the Corinthians. See Tertullian, De monogamia, 3, in PL 2, 933.

⁵¹ « Solus enim tile separabit, qui et conjunxit; separabit autem, non per duritiam repudii, quam exprobrat et compescit, sed per debitum mortis. [...] Nam et nubere legitime non potest repudiata; et si quid tale commiserit sine matrimonii nomine, non capit elogium adulterii, qua adulterium in matrimonio crimen est?». TERTULLIAN, De monogamia, 9, in PL 2, 940-941.

⁵² See TERTULLIAN, De monogamia, 9, in PL 2, 940-941.

⁵³ « Adeo autem repudium a primordio non fuit, ut apud Romanos post annum sexcentesimum Urbis conditae id genus duritiae commissum denotetur. Sed illi etiam non repudiantes adultena commiscent; nobis etsi repudiemus, ne nubere quidem licebit». Tertullian, De monogamia, 9, in PL 2, 941-942, trans. ACWXm, 90.

⁵⁴ «Illicite enim dimissam pro indimissa ducens, adulter est. Manet enim matriminium quodnon rite diremptum est. Manete matrimonoi nubere, adulterium est». Tertullian, Adversus Marcionem, Lib. 4, 34, in PL 2, 442; See J.P. ARENDZEN, «Ante-Nicene Interpretations», 233; J. Delazer, «De indissolubilitate», 450-464;. Bevilacqua recog nizing some obscurity in Tertullian's explanation states that «it must be understood, however, in the context of other statements by Tertullian in which he clarifies his defence of the indissolubility of marriage». A.J. Bevilacqua, «The History», 256.

⁵⁵ «Igitur si repudiata quae per discordiam, et iram, et odium, et causas eorum, injuriam vel contumeliam, vel quamlibet quaerelam, et anima et corpore separata est, tenetur inimico, ne dicam marito». TERTULLIAN, De monogamia 10, in PL 2, 942.

⁵⁶ See Tertullian, De monogamia, 10, in PL 2, 942.

⁵⁷ See St. Cyprian, Testimoniorum, Lib. 3, 90, in PL 4, 774.

⁵⁸ «Nec tantum alienis, quae attingere non licet, verum etiam publicis vulgatisque corporibus abstinendum, Deus praecepit; docetque nos, cum duo inter se corpora fuerint copulata, unum corpus efficere. Nec tantum legibus publicis pareat: sed sit supra omnes leges, qui legem Dei sequitur». Lactantius, Divinarum Institutionum, Lib. 6 «De vero cultu», cap. 23, in PL 6, 718.

⁵⁹ «Sed divina lex ita duos in matrimonium, quod est in corpus unum, pari jure conjungit, ut adulter habeatur, quisquis compagem corporis in di versa distraxerit». Lactantius, Divinarum Institutionum, Lib. 6 «De vero cultu», cap. 23, in PL 6, 719; trans. TFC XXIX, 460.

⁶⁰ «Adulterum esse, qui a marito dimissam duxerit, et eum qui praeter crimen adulterii uxorem dimiserit ut alteram ducat; dissociari enim corpus et distrahi Deus noluit». LACTANTIUS, Divinae Institutions, Lib. 6 «De vero cultu», cap. 23, in PL 6, 720.

⁶¹ «Deus virum et uxorem unius corporis compage solidavit. Ideo praecepit non dimitti uxorem, nisi crimine adulterii revictam, ut nunquam conjugalis foederis vinculum, nisi quod perfidia ruperit, resolvatur». Lactantius, Epitome Divinarum Institutionum, cap. 66, in PL 6, 1080; See E. BELLINI, «Separazione», 383.

1.3. The first particular laws regarding divorce cases

As the third century drew to a close, bishops within different areas began to meet together in regional synods. These councils were held only occasion ally and dealt with specific matters concerning ecclesiastical governance and discipline, including the issues regarding the marriage crisis of Christians. The conciliar activity testifies to unceasing struggle for correct understanding, faithful preservation, and defense of the principle of indissolubility as well as to the Church's disagreement with divorce and remarriage. Unlike early writers, the conciliar preoccupation was mainly with the status of those with broken marriages within ecclesiastical community. The primitive Church abstained from full exercise of judicial competence over marriage matters. However, an awareness of its responsibility, intimate control, and disciplinary power over the Christians and their marriages are well documented by various pastoral directives, moral teachings and disciplinary prescriptions.⁶² A separate judgment was made regarding the worthiness of the divorced and remarried persons to receive the Eucharist.

The earliest statement on the broken marriages is that of the Provincial Council of Elvira (306) in southern Spain, which was attended by nineteen bishops.⁶³ Three canons of this first Spanish council reflect the common approach of Church leaders to the divorce problems of that time. The conciliar fathers affirmed the doctrinal position on indissolubility, severely condemned remarriage and excluded from Eucharistic fellowship those who had divorced their spouses and then remarried. It seems to be the earliest known testimony that remarriage places serious obstacles to the admission to the sacraments of those who have left their married partners and have contracted the new unions. In the ninth canon they decreed as follows:

Likewise let the faithful woman, who has left an adulterous husband and attracts another faithful one, be forbidden to marry; if she should marry, let her not receive communion unless he whom she has left has previously departed this world; unless by chance the exigency of illness should compel the giving.⁶⁴

The innocent party can leave an adulterous spouse but cannot marry again. A divorced-remarried person is not to be readmitted to the sacramental life. Remarriage is viewed as a sin that offends both God and the community and separates one from the Eucharistic community. This long-lasting prohibition was revoked only when the first union was dissolved because of a partner's death or when the remarried person was in danger of death. When the remarried one left the illegitimate partner, he or she could be readmitted to the sacramental life only after ten years of penance.⁶⁵ A wife who left her husband without a cause and remarried was not admitted to Holy Communion even on her death-bed.⁶⁶ Special attention was given also to the clerics. They were to dismiss their adulterous wives.⁶⁷

During the same decade as the Council of Elvira, thirty-three Western bishops came together for the Council of Ar1es I (314), France. It was a quasi-general synod of the Church because of participants from French, Italian, African, Britain provinces and four representatives of Pope Silvester.⁶⁸ Like the bishops in Elvira, they dealt, besides other subjects, with the problem of broken marriage. This shows that such cases were not rare. One of the differences between Elvira and Arles consists in the secondary fact that Elvira dealt not with the case of women's adultery but that of husbands. However, remarriage was prohibited for both sexes. This French council sheds, then, an interesting light on the difficult situation of young married Christian faithful to whom the council counseled against remarriage unlike the other cases where it was absolutely prohibited: «As regards those who find their wives in adultery, and who, though young men are as Christians forbidden to remarry, it has seemed good that as far as possible they are advised not to take other women during the lifetime of their wives, though they are guilty of adultery».⁶⁹

Some have maintained that this canon wanted to describe the difficult situation of some young couples and to call attention of the bishops to make every effort to dissuade young men from remarrying. However, the real intent of such a statement is unknown because the whole discussion on this issue has not been preserved, only the summary in the form of a pertinent canon.⁷⁰ The distinct choice of two different verbs, «forbidden and advised», does not signify any change in the doctrinal position which forbids remarriage. It seems that the first part of this canon sets out the Church teaching while the second one urges behaving according to it.⁷¹

⁶² See P. DAUDET, Etudes, 10-11.

⁶³ The Emperor Constantine I was represented on this council by his legate and counselor Ossius, bishop of Cordoba. See C.J. HEFELE — E. Leclercq, Histoire des Conciles, I, 220; J.N. Hillgarth, ((Council of Elvira», 289.

⁶⁴ (dtem femina fidelis, quae adulterum maritum reliquerit fidelem et alterum ducit, prohibeatur ne ducat; si duxerit, non prius accipiat communionem, nisi quem reliquerit prius de saeculo exierit; nisi forte necessitas infirmitatis dare compulerit». Concilium ELBERITANUM, can. 9, in MANSI 2, 7; BCA II, 3; DS 1 17; trans. DSE 52a.

⁶⁵ «Si cum conscientia mariti uxor fuerit moechata, placuit, nec in fine dandam esse communionem: si vero eam reliquerit, post decem annos accipiat communionem». Concilium Eliberitanum, can. 70, in Mansi 2, 17, BCA II, 1 1.

⁶⁶ «Item feminae, quae, nulla praecedente causa, reliquerint viros suos, et se copulaverint alteris, nec in fine accipiant communionem» can. 8. «Si ea, quam catechumenus reliquit, duxerit maritum, potest ad fontem lavacri admitti. Hoc et circa feminas catechumenas erit observandum. Quod si fuerit fidelis, quae ducitur, ab eo qui uxorem inculpatam reliquit, et cum scierit illum habere uxorem, quam sine causa reliquit; placuit, huic nec in finem dandam esse communionem» can. 10. Concilium Eliberitanum, in Mansi 2, 7; BCA II, 3; See also R.C. Mortimer, The Origins, 47.

⁶⁷ «Si cujus clerici uxor fuerit moechata et scierit eam maritus suus moechari, et non eam statim projecerit, nec in fine accipiat communionem: ne ab his, qui exemplum bonae conversationis esse debent, ab eis videantur scelerum magisteria procedere». Concilium ELIBERITANUM, can. 65, in MANSI 2, 16; BCA II, 10.

⁶⁸ At the end of the conciliar document there is a list of participants together with the Papal representatives «Claudianus et Vitus presbyteri, Eugenius et Cyriacus diacones, ex urbe Roma missi a Silvestro episc». See MANSI 2, 476-477.

⁶⁹ «De his qui conjuges suas in adulterio deprehendunt, et iidem sunt adolescentes fideles et prohibentur nubere, placuit ut inquantum possit consilium iis detur, ne viventibus uxoribus suis, licet adulteris, alias accipiant». Concilium Arelatense I, can. 10, in MANSI 2, 472; BCA II, 108; trans. W.R. CLARK, A History, I, 189-190.

⁷⁰ See J.P. Arendzen, «Ante-Nicene Interpretations», 239-240.

⁷¹ See H. Crouzel, Mariage, 88-91.127-140; The same author in another his article recognizes that the text of this canon has appearance of tolerance But «the mistake of certain theologians and canonists is to have equated this tolerance with acceptance». See Id., «Remarriage», 28.

2. Post-Nicene period

The major turning points in the history of the early Church were three great events at the beginning of the fourth century. The first was the so-called Edict of Milan (313), by which Emperor Constantine gave equal rights to all religions within the Roman Empire and officially recognized the Church. The second was the convocation of about 300 bishops in Nicea for the first universal council (325). The third was the solemn decision of Emperor Theodosius (380), who elevated Christianity to the status of the official state religion of the Roman Empire. New religious freedom promoted a massive influx of new Christian converts, whose opinions on marriage were not always in harmony with the Church's teaching.⁷² When the Roman Emperors were converted to Christianity, new laws began bit by bit to mirror Christian doctrine although their legislation henceforth admitted divorce with the right to remarry albeit with some restrictions.⁷³

During the first centuries of Christianity secular legislation was accepted as a reality. It took a long time to transfer the marriage cases completely from the jurisdictional power of the state to the Church's jurisdiction. Various pastoral means and moral directives peculiar to that time were in use. In the middle of the fourth century, the bishops could solve matrimonial cases but the execution of their decisions belonged to the civil officials.⁷⁴

⁷² See P. DACQUINO, Storia, 97.

⁷³ For survey of the divorce legislation of the Christian Emperors from Constantine (331) to Justin II (566) see J.T. Noonan, «Novel 22», 41-71.87.

⁷⁴ See W. Ernst, «Marriage», 59.

2.1 The writings of the Church's doctors on separation

The post-Nicene Church inherited the tradition of the previous period, in which there was no evidence that the clause in Matthew was interpreted as authorizing the breaking of marriage bond itself, but only as allowing the separation of the spouses without the right of remarriage.⁷⁵ It is important to see how the post-apostolic tradition surrounding the institution of marriage was further developed in theology and the canonical legislation of the universal Church and its local communities. The teaching of the eminent ecclesiastical writers, who have left admirable work in the form of their exegesis, apologetics, homilies and theological treatises, is certainly worthy of special recognition. They are the acknowledged witnesses to what the early Church taught. It will be sufficient to investigate the most prolific fathers of the Church representing both the Eastern and Western provinces.

⁷⁵ See W.E.H Leckey, History, II, 324-326; J.P. Arendzen, «Ante-Nicene Inter- pretations», 241.

2.1.1 Greek Fathers

The metropolitan of Caesarea, St. Basil (329-379), in more than one passage, speaks of marriage problems. Three letters to his disciple Amphilochius contain the information on those who separate from a partner and remarry and on the penitential tradition. Later, these letters were divided into 85 canons. Canon 4 of his so called First Canonical Letter speaks of those who have married a second or a third time after the death of their former spouses by a first and a second marriage. Although such marriages were permitted, the spouses were not admitted to Holy Communion before the lapse of the time prescribed. A third marriage, especially, was frowned upon.⁷⁶

The ninth canon of the same letter requires closer examination and special attention in interpretation, because, at first glance, it might suggest explaining Basil's certain tolerant attitude as permission for the innocent party to remarry.⁷⁷ It seems appropriate here to cite the whole passage:

The declaration of the Lord concerning the prohibition to depart from marriage except for the reason of fornication, consistent with the sense, applies equally to men or to women. [...] I do not know whether the woman living with a dismissed husband can be styled an adulteress. [...] And if it was because he lived in fornication, we do not observe this practice in the Church; on the contrary, the wife is not commanded to depart even from the unbelieving husband [...] Therefore, she who left is an adulteress if she went to another man. But, he who was abandoned is to be pardoned, and she who dwells with such a one is not condemned. However, if the man separating from his wife went to another woman, then he himself is an adulterer, because he has made her commit adultery, and the woman living with him is an adulteress, because she has taken another's husband to herself.⁷⁸

Undoubtedly St. Basil emphasizes at the beginning that Jesus' prohibition of divorce should be equally applied to men and women. However, the experience of everyday life, as Basil goes on, speaks of a greater strictness for women, that is, an adulterous woman is to be dismissed, but on the other hand, no allowance is made for the innocent wife in a case of her husband's adultery.⁷⁹ She is required to continue conjugal living even in the case of physical cruelty or unbelief. The question whether the woman living with a dismissed husband can be judged an adulteress, it is necessary to understand and decide whether a canonical penalty is to be applied in such case. A reply of St. Basil mirrors only his moderate attitude in regard to the canonical penalty and not permission to marry to the unjustly dismissed.⁸⁰ An excep tional tolerance of the dismissed-remarried husbands is not equivalent to approval of the new unions. Rather it is to be interpreted that they are to be judged very differently from those who were the main cause of divorce. St. Basil did not want to subject the former to all the consequences resulting from the condition of the remarried.⁸¹ In other words, he did not approve remarriage, but only wanted to reduce severe canonical penalty usually inflicted for such a fault. To assert that St. Basil was for the possibility of remarriage would be a misinterpretation of his words.⁸²

To have a more detailed picture of this issue it will be useful to quote Canon 77 that gives, beside a distinction between justified and unjustified termination of common life, a description of the penal sanctions possible for those who have deliberately violated marital indissolubility:

He who leaves the wife lawfully joined to him and unites himself with another, according to the sentence of the Lord lies under the charge of adultery. And it has been ruled by our Fathers that such should weep for one year, should be hearers for a period of two years, should be prostrates for a period of three years, and in the seventh stand with faithful. And then they will be considered worthy of Holy Communion if they do penance with tears.⁸³

This cannon can serve also as an example of the penitential system of the early Eastern Church. Penitents were divided into four categories, a) The mourners had to stand outside the door of the Church and beg the faithful entering to pray for them. b) The hearers could be in the vestibule of the Church only during the readings and instruction like catechumens, c) The kneelers could be inside the Church but had to go out with the catechumens. d) The standers could remain with the faithful but without receiving communion.⁸⁴ Yet another relevant writing touches the Cappadocian eccle siastical practice and the view of indissolubility at that time. In his ascetical work, Moralia, St. Basil had admitted separation with the bond remaining only in two cases: when one of the spouses was taken in adultery, or when one became an obstacle to the other in devout service.⁸⁵

St. Gregory of Nazianzen (329-390), as archbishop of Constantinople and inseparable friend and collaborator of St. Basil, had to know and be influenced by his opinion on the subject. Gregory speaks very clearly, leaving no place for any doubt in the interpretation of his writings. First, in his letter to the civil governor Olympios, Gregory tried to call attention to the wrong request of Verian, who wished his daughter to dismiss her husband. He calls to mind a contrast between Roman law and Christian law, emphasizing the prohibition of divorce by the latter.⁸⁶

Bishop Gregory confronts the separation issue in his 37th Discourse on Matthew 's Gospel, where he writes that nothing except adultery may be a reason for permitting separation. He does not admit the existence of other grounds. All other marital problems are to be met with a spirit of prudence and patience.⁸⁷ His attitude towards the question of divorce is uncompromising.

St. John Chrysostom (347-407), Archbishop of Constantinople, enjoys high esteem in the Eastern Church. Several times he denounced divorce with remarriage, especially in his homilies on the texts of Matthew and Mark. In the light of the Gospel he sees a remarriage during the life time of a partner as an impossible thing among Christians because of the absolute indis solubility of their marriage. In his interpretation of Jesus' words Chrysostom states that a husband must forever dwell with his wife and never break off from her. But on the other hand, interpreting Paul's teaching, he allows the leaving of one's partner if conjugal life is intolerable. Moreover, he commands the innocent spouse to dismiss his adulterous partner.⁸⁸ Chrysostom inquires why the Christian spouse is not to dismiss also an unbelieving partner. His answer is that «the adulteress is no one's wife».⁸⁹ It seems to be a wrong interpretation of this sentence that the wife's adultery dissolves her marriage, so that both the innocent husband and adulterous wife are free to remarry.⁹⁰ Though Chrysostom does not say so, he literally says that the person guilty of adultery is no more the wife of her legal partner nor the legal wife of the one whom she married thereafter. To present Chrysostom's teaching more clearly, it would be helpful to quote from one of his homilies:

The sexual act is adulterous not only when the woman is bound to another man; it is also adultery for the man who is himself bound to a wife. Pay close attention to what I say: Even if my speech becomes tedious to many, it is still necessary for me to utter it to set you straight in the future. Not only is it adultery when we corrupt a woman yoked to a man; the deed is also adultery if a married man corrupt a woman who is free and not constrained by any relationship with a man.⁹¹

Chrysostom's teaching does not leave any doubt that remarriage is condemned while both the husband and wife still live.

⁷⁶ «De trigamis et polygamis definire eumdem canonem, quem et de digamis, servata proportione: annum videlicet in digamis, alii vero duos annos. Trigamos autem tribus, et saepe quattuor annis segregant. Id autem non amplius conjugium, sed polygamiam appellant, vel potius moderatam fornicationem Quapropter et Dominus Samaritanae, quae maritos quinque per vices habuerat, "Quem nunc", inquit, "habes, maritus non est"; quippe quod ii qui digamiae mensura exciderunt, digni non sint qui vel mariti vel uxoris nomine appellentur. jam vero consuetudine, accepimus in trigamis quinquennii segrega- tionem, non a canonibus, sed eos qui praecesserunt sequendo. Oportet autem eos non omnino arcere ab Ecclesia, sed auditione dignari duobus vel tribus annis: ac posthac ipsis permittere, ut consistant quidem, abstineant vero ab boni communione, et sic, exhibitio poenitentiae aliquo fructu, communionis loco restituere». St. Basil, Ep. 188 Stulto interroganti, can. 4, in PG 32, 674.

⁷⁷ See V.J. POSPISHIL, Divorce, 148-153.

⁷⁸ ST. BASIL, Ep. 188 Stulto interroganti, can. 9, in PG 32, 678; trans. TFC XXVTII, 19-20.

⁷⁹ The same opinion is expressed in his second canonical letter to Amphilochius where St. Basil mentions a case of a married man who committed a sin with unmarried woman. Basil's advice is that his wife is to receive him back. But not vice versa. Basil himself does not know any reason for such advice except that it is a custom in his provin ce: «sed qui fornicatus est, non excludetur quominus cum uxore habitet Quare uxor quidem a fornicatione revertentem virum suum excipiet: vir vero pollutant e suis aedibus ejiciet. Atque horum quidem ratio non facilis, sed consuetudo sic invaluit». St. Basil, Ep. 199 canonica secunda Cum pridem ad propositas, can. 21, in PG 32, 722.

⁸⁰ O. Rousseau holds an opinion that «canonical penalties existed for adulteresses. Basil questions their validity in such a case. He does not justify the case». 0. Rousseau, «Divorce», 62; See also G.H. Joyce, Christian Marriage, 324-325.

⁸¹ See H. CROUZEL, L 'Eglise, 27.

⁸² See E. ScHILLEBEECKX, Marriage, 283; One can take this canon as the beginning of the polemic whether remarried penitents could be restored to sacramental fellowship.

⁸³ «Qui relinquit legitime sibi copulatam mulierem, et aliam ducit, ex Domini sententia adulterii subjicitur judicio. Sed statutum est Patrum nostrorum canonibus, ut ii anno fleant, biennio audiant, triennio substernantur, septimo consistant cum fidelibus, et ita oblatione digni habeantur, si cum lacrymis poenitentiam egerint». St. Basil, Ep. 217 canonica tenia Ex longo reversus, can. 77, in PG 32, 803-806; trans. TFC XXVIII, 114.

⁸⁴ See A.C. Way, «Introduction», in TFC XXVIII, xiv.

⁸⁵ «Quod vir ab uxore aut uxor a viro non debeat separari, nisi alter deprehendatur in adulterio, aut pietatis sit impedimento. [...] Quod non licet viro, uxore dimissa, aliam ducere: neque fas est repudiatam a marito, ab alio duci uxorem». St. Basil, Moralia, Regula 73, in PG 31, 850-851; See also CCC 2384.

⁸⁶ «Ego autem lubentissime filio Veriano id consilii darem, ut multa eorum, quae in medio sunt, praeterit, quo divortium minime confirmare, quod legibus nostris prorsus improbatur, etiamsi Romanae aliter decernant». St. Gregory of Nazianzen, Ep. 144 Haud ubique ad Olympium, in PG 37, 247; See also Ep. 145 Nihil grave ad Verianum, in PG 37, 247.

⁸⁷ «Enimvero lex omnes ob causas libellum dat repudii. At Christus non ab omnes, sed ob impudica tantum et adultera uxore viro separari permittit: reliquis autem omnibus in rebus animi aequitate ac patientia uti jubet. Ergo impudicam quidem, quia genus corrumpit et adulterat, expellamus: cetera omnia patienter moderate et sapienter feramus; aut, ut rectius loquoar, sapienter et moderate ferte, quicumque matrimonii jugum subiistis». St. Gregory of Nazianzen, Orationes, 37, 8, in PG 36, 291.

⁸⁸ See St. John Chrysostom, Commentarius in Sanctum Matthaeum, Homilia 17, 4, in PG 57, 259-260; Homilia 62, 2, in PG 58, 597-599.

⁸⁹ « Imo neque illius, neque suam juste quis talem appellet : adultera enim nulius est uxor». St. John Chrysostom, Homilia «De libello repudii II», 3, in PG 51, 221; See also Homilia «Et quales ducendae sint uxores», 1, in PG 51, 225.

⁹⁰ See H. CROUZEL, «Remarriage», 23.

⁹¹ «Adulterium est enim, non solum si viro conjuncta moechetur, sed etiam si ille alligatus sit uxori. Exacte attende quod dico: euamsi quod dicitur multis sit grave ac molestum, necesse est tamen dicere, ut in posterum corrigans. Non solum est adulterium, quando viro conjunctam corumpimus mulierem, sed et si liberam et solutam ipsi alligati uxori, ea res est adulterium». St. John Chrysostom, Commentarius in Epistolam, cap. 4, homilia 5, in PG 62, 425.

2.1.2 Latin Fathers

The post-Nicene period in the Western tradition is well documented by many written testimonies of Latin speaking authors. With regard to the unity in their teaching on the indissolubility of marriage and the strict prohibition of remarriage, it seems sufficient to demonstrate thus only in the great doctors of the Church.

St. Ambrose (340-397) speaks explicitly on the discrepancy between Christian law and imperial law in marriage matters.⁹² While human law does not forbid to put away one's wife, the divine law forbids it. The fact that a man and a woman have been joined together by God does not permit any dissolution.⁹³ His homily on Abraham leaves no doubt that he considers every divorce, including the one obtained before civil authority, as a crime of adultery:

Are you bound to a wife? Do not seek a divorce, because you are not allowed to marry another while your wife is still living. Since you have your own wife, it is the crime of adultery to seek another one. And it is more serious that you think you should seek the authority of law for your sin.⁹⁴

St. Ambrose took various occasions to stress the evil of divorce and to overcome a discrepancy between theory and practice, between the Gospel standards and the customs of society. He enumerates some consequences of broken marriages: a) a divorce breaks not only a heavenly precept valid on the earth but also dissolves a certain work of God; b) the divorcees rend their own flesh, divide their own body;⁹⁵ c) those who sin against marital fidelity lose the grace that accompanies marriage.⁹⁶ In short, Ambrose's teaching against divorce can be expressed in his own words: «Do not dismiss your wife, lest you proclaim a rejection of God, the author of your marriage».⁹⁷

The teaching of St. Ambrose also reveals another fact. The Church, already inculturated in the Roman Empire, more and more understood marriage as a religious affair, which belongs to the competence of the bishop rather than to the jurisdiction of the civil authority. From this point of view the Church kept its inclination to the Jewish system, where marriage and divorce laws were a part of religious law and not merely a civil transaction as in Roman jurisprudence.⁹⁸ Though ecclesiastical authorities recognized civil jurisdiction in matrimonial affairs, they protested against those laws that they regarded as unacceptable to Christians.

Until Erasmus of Rotterdam discovered the error, a monumental work of the Commentaries on the Thirteen Epistles of St. Paul was traditional but wrongly ascribed to Bishop Ambrose of Milan. Desiderius Erasmus coined the name Ambrosiaster (ca. 366-384) to distinguish it from St. Ambrose.⁹⁹ In his Commentary on Paul's First Letter to the Corinthians Ambrosiaster, sometimes called Pseudo-Ambrose, brings up the practice of Roman remarriage and defends the lawfulness of remarriage following a divorce for misconduct. He is convinced that adultery itself breaks the bond of marriage and that the innocent husband can remarry, though he denies the same right to the wife even if she is innocent. If she leaves her husband, she must remain single. A man has a different right than a woman:

Let not the husband put away his wife. We must supply the words «save for the cause of fornication». And therefore the Apostle does not add, as in the case of the woman: «but if he depart, let him remain unmarried»: for a man may marry, if he has put away his offending wife; since the law does not bind him as it does a woman, for the head of the woman is the man.¹⁰⁰

This quoted text remains alone among the writings of the Latin authors and is contrary to their common teaching on remarriage and their interpretation of the Matthean clause. Ambrosiaster's thinking in no way attained an approbation of the Church nor was it expressed in this way or supported by any council of that era. It can be considered only as a local laxity of practice and the only written evidence that favors divorce and remarriage.¹⁰¹

The formulation of the teaching on separation is brilliantly clear in the writings of St. Jerome (349-420).¹⁰² In his Commentary on Matthew's Gospel St. Jerome affirms the principle of indissolubility and holds that the only ground that justified separation of spouses, without the right to remarry, was infidelity. An act of dismissal does not dissolve the marriage nor permit anyone to marry another.¹⁰³ These views are repeated by St. Jerome in his letters to Amandus¹⁰⁴ and to Pammachaium¹⁰⁵ as well as in his work Adversus Jovinianum, where he notes that «it is disgraceful to love another man's wife at all».¹⁰⁶ It should be noticed that there was still a considerable discrepancy in the divorce issues between Roman civil law and New Testament law: «The laws of Caesar are different than those of Christ; Papinian commands one thing and Paul commands something else».¹⁰⁷

The position of the Church at the end of the fourth century is illustrated by St. Jerome with the case of Fabiola. She was a Roman woman, who had divorced her husband because of his immoral behavior and married another man. Jerome did not blame her for this since she did not know that such a new union was illegitimate according to the Gospel. It was only after her remarriage that Fabiola discovered her lack of a sufficient introduction to Christian doctrine. However, she was not permitted to participate in the sacramental life while living with another man. After the death of her second husband Fabiola did public penance as one guilty of adultery and then was readmitted to the Eucharist.¹⁰⁸

⁹² Before St. Ambrose became the metropolitan of northern Italy in Milan (374), he was for two years in the responsible and important office of governor of Liguria in the Western Empire. His excellent and practical knowledge in matters of Roman civil law and the faith of his time is mirrored in many of his discourses, homilies and writings leveled against divorce. See H.J. Thurston - D. Attwater, Butler's Lives of the Saints, IV, 509.

⁹³ «Dimittis ergo uxorem quasi jure, sine crimine: et putas id tibi licere, quia lex humana non prohibet; sed divina prohibet. Qui hominibus obsequeris, Deum verere. Audi legem Domini cui obsequuntur etiam qui leges ferunt: Quae Deus conjunxit, homo non separet». St. Ambrose, Expositio Evangelii secundum Lucam, Lib. 8, 5, in PL 15, 1767.

⁹⁴ «Vinctus es uxori, noli quaerere solutionem: quia non licet tibi, uxore vivente uxorem ducere. Nam et aliam quaerere, cum habeas tuam, crimen est adulterii, hoc gravius, quod putas peccato tuo auctoritatem lege quaerendam». St. Ambrose, De Abraham, Lib. 1, cap. 7, 59, in PL 14, 442.

⁹⁵ «Sed non solum hie caeleste praeceptum, sed quoddam etiam opus Dei solvitur. [...] Sed fortasse dicit aliquis: Quomodo Moyses mandavit dari librum repudii et dimitere uxorem"} Qui hoc dicit, Judaeus est; qui hoc dicit Christianus non est. Et ideo quia hoc objicit quod objiectum est Domino, respondeat ei Dominus: Adduritiam, inquit, cordis vestri permisit vobis Moyses dare librum repudii, et dimittere uxores; ab initio autem non fuit sic. Ergo qui dimittit uxorem, carnem suam scindit, dividit corpus». St. AmBROSE, Expositio Evangelii secundum Lucam, Lib. 8, 6-7, in PL 15, 1767.

⁹⁶ «Et ideo quia in Deum peccat, sacramenti caelestis amittit consortium». ST. AmBROSE, De Abraham, Lib. 1, cap. 7, 59, in PL 14, 443.

⁹⁷ «Noli ergo uxorem dimittere, ne Deum tuae copulae diffitearis auctorem». St. Ambrose, Expositio Evangelii secundum Lucam, Lib. 8, 4, in PL 15, 1766.

⁹⁸ See B. COHEN, Jewish and Roman Law, 383-384.

⁹⁹ An unknown author probably has written the whole work in Rome sometime between 366 and 383. On the identity of Ambrosiaster see P.J. HAMELL, Handbook of Patrology, 136; J H. CREHAN, «Ambrosiaster», 376; H. Crouzel, «La indisolubilidad», 65.

¹⁰⁰ «Et virum uxorem non dimittere. Subauditur autem, excepta fornicationis causa. Ed ideo non subjecit dicens, sicut de muliere: quod si discesserit, manere sic; quia viro licet ducere uxorem, si dimiserit uxorem peccantem; quia non ita lege constringitur vir, sicut mulier; caput enim mulieris vir est». Ambrosiaster, Commentaria in Epistolam, versus 11, in PL 17, 218; trans. A.J. BEVILACQUA, «The History», 263.

¹⁰¹ See P. DACQUINO, Storia, 110-111; Crouzel writes similarly: «L'Ambrosiaster est done le seul ecrivain ecclesiastique des cinqs premiers siecles a permettere clairement le remarriage». H. Crouzel, L 'Eglise, 21 A; «Parmi Ies auteurs des cinq premiers siecles consideYes comme orthodoxes un seul donne done clairement au mari trompe la permission de contracter a nouveau mariage, l'inconnu designe sous le nom d'Ambrosiaster». Id., Mariage, 43; See also E. Bellini, «Separazione», 382-383; E. Hamel, «The Indissolubility», 185.

¹⁰² For a wni]e he was a secretary to Pope Damasus, who entrusted to him the revision of the biblical texts. Jerome's translation of the Bible to Latin, known as Vulgata, assured his place in history. Beside this monumental work, he wrote many biblical commentaries, homilies and letters.

¹⁰³ «Sola fornicatio est, quae uxoris vincat affectum: immo cum illa unam carnem in aliam diviserit, et se fornicatione separaverit a marito, non debet teneri: ne virum quoque sub maledicto faciat, dicente Scriptura: Qui adulteram tenet, stultus et impius est. Ubicumque est igitur fornicatio, et fornicationis suspicio, libere uxor dimittitur. [...] Grave pondus uxorum est, si excepta causa fornicationis, eas dimittere non licet. Quid enim si temulenta fiaerit, si iracunda, si malis moribus, si luxoriosa, si gulosa, si vaga, si jurgatrix, si maledica, tenenda erit istiusmodi? Volumus nolumus sustinenda est». ST. Jerome, Commentariorum in Evangelium Matthaei, Lib. 3, cap. 19, vers. 9-10, in PL 26, 135.

¹⁰⁴ «Omnes igitur causationes Apostolus amputans, apertissime definivit, vivente viro adulteram esse mulierem, si alteri nupserit. [...] Quamdiu vivit vir, licet adulter sit, licet sodomita, licet flagitiis omnibus coopertus, et ab uxore propter haec scelera derelictus, maritus ejus reputatur, cui alterum virum accipere non licet». St. Jerome, Ep. 55 Brevis Epistola ad Amandum, 3, in PL 22, 562-563.

¹⁰⁵ «Docet enim iuxta sententiam Domini uxorem, excepta causa fornicationis non repudiandam et repudiatam, vivo marito, alteri non nubere aut certe viro suo debere reconciliari». St. Jerome, Ep. 48 Quod ad te ad Pammachium, 5, in PL 22, 497.

¹⁰⁶ See St. Jerome, Adversus Iovinianum, Lib. 1, 10, in PL 23, 223.

¹⁰⁷ «Aliae sunt leges Caesarum, aliae Christi: aliud Papinianus, aliud Paulus noster praecipit». ST. JEROME, Ep. 77 Pluresanni sunt ad Oceanum, 3, in PL 22, 691.

¹⁰⁸ «nec Evangelii vigorem noverat, in quo nubendi universa causatio, viventibus viris, feminis amputatur, [...] Sed quid ego in abolitis et antiquis moror, quaerens excusare culpam, cujus poenitentiam ipsa confessa est? [.. .] Sic dolebat, quasi adulterium commisisset, et mult is impendiis medicaminum unum vulnus sanare cupiebat». ST. JEROME, Ep. 77 Plures anni sunt ad Oceanum, 3-5, in PL 22, 691-692. Similarly he says in his another letter: «Ergo et ista soror, quae ut dicit, vim passa est ut alteri jungeretur, si vult Corpus Christi accipere, et non adultera reputari, agat poenitentiam: ita dumtaxat, ut secundo viro, qui non appellatur vir sed adulter, a tempore poenitentiae non copuletuD). ID., Ep. 55 Brevis Epistola ad Amandum, 4, in PL 22, 563.

2.1.3 Saint Augustine

None of the post-Nicean Fathers developed so profound a theology of marriage as St. Augustine (354-430), bishop of Hippo Regius in North Africa. His doctrine deserves a special treatise because of the tremendous influence of his thought upon theology and Canon Law after his time. This most influential of the patristic writers testifies to a tradition in Africa and is the first among the Fathers of the Church to systematize the elementary theology of marriage that preceded him. Solutions offered by Augustine have their roots in a careful exegesis of biblical texts. A summary of his several writings,¹⁰⁹ in which he explains the Church's teaching on this subject, can be expressed in the following way:

St. Augustine was the first to develop and define three goods, bona, as the essential attributes of marriage. The Augustinian concept of Christian marriage rests on these three cornerstones or pillars: a) in procreativity and upbringing of children (bonum prolis); b) fidelity (bonum fidei); c) permanence and indissolubility (bonum sacramenti).¹¹⁰

According to the doctrine of this great theologian, the law of fidelity is violated when one of the partners commits adultery: «The violation of this fidelity is called adultery, when either by the instigation of one's own lust or by consent to the lust of another, there is intercourse with another contrary to the marriage contract».¹¹¹ Marriage ordered to procreation cannot be dissolved even in the case when generation is impossible because of sterility. Augustine's judgment on it is the following:

Once, however, marriage is entered upon in the City (that is Church) of our God, where also from the first union of the two human beings marriage bears a kind of sacred bond, it can be dissolved in no way except by the death of one of the parties. The bond of marriage remains, even if offspring, for which the marriage was entered upon, should not follow because of a clear case of sterility, so that it is not lawful for married people who know they will not have any children to separate and to unite with others even for the sake of having children.¹¹²

The very reason of the indissolubility of the marriage union is its third fundamental principle of marriage, namely the bonum sacramenti.¹¹³ The term sacramentum is not used in exactly the same sense. For Augustine it has a double meaning. It means a sacred sign of the union between Christ and the Church, and the indissoluble marriage bond.¹¹⁴ Augustine thus expressed that the Christian marriage is a sacred act with human elements unlike the pagan concept of marriage, which held marriage as a human act with ethical religious elements.¹¹⁵

The sacramentum in the souls of two married Christians excludes divorce with subsequent remarriage even in the case of adultery. Two Christians spouses remain married to one another until one of them dies, because something pertaining to marriage still exists.¹¹⁶ Augustine underlines that a man does not have the freedom to marry another if he leaves an adulteress, and the same is true with a woman who leaves an adulterer.¹¹⁷ Augustine compares the marital bond to the character of baptism and to the character of Holy Orders. He explains that even after marital separation or relation with another man or woman, «a certain conjugal something», quiddam conjugate, remains as long as husband and wife are alive. Likewise the sacrament of baptism is not canceled by lost faith,¹¹⁸ and the sacrament of Holy Orders is not annulled if one ordained to the priesthood does some offense or is removed from office for some serious reason.¹¹⁹ St. Augustine warns about the difference between civil law, Moses' permission, and the Gospel's requirement. According to the last, every remarriage is adulterous while the prior union endures. Neither separation nor intercourse with another can destroy the bond which unites the Christian husband and wife.¹²⁰

Even before his episcopal consecration, in his comment named The Sermon on the Mount according to Matthew, St. Augustine for the first time expressed his teaching on the indissolubility of marriage against the divorce trends of his epoch.¹²¹ Later as the Bishop of Hippo, he again and again insisted strongly on the mutual duty to live together and to not break up the cohabitation for any difficulty whatever. Augustine teaches that the New Testament does not forbid separation of the spouses absolutely. It is permitted in the case of adultery, but even after a divorce for immorality the couple remain husband and wife. None of them can remarry someone else. In support of this opinion he refers to Jesus' teaching in Matthew and thus at the same time expresses his interpretation of the Matthean clause.¹²²

In any event, the most important Augustinian work dedicated to this issue is the treatise Adulterous Marriages. The whole work is a reply to many questions and erroneous notions of Pollentius,¹²³ among which indissolubility in the case of adultery holds the main position. Pollentius argues that the Pauline prescription to remain unmarried after the separation of two Christians applies only on grounds other than adultery. Pollentius was of the opinion that a woman, separated from her husband because of adultery, can remarry although it is not advisable to do it.¹²⁴

With Augustine's reply, in the form of a booklet, Pollentius disagreed and proposed new arguments contesting the habitual practice of the Church of his time. Pollentius is strongly for the dissolution of the bond in the case of marital infidelity. He says mat the adultery is a spiritual death, comparable to physical death, of the marriage. In both cases the effects are the same — the dissolution of the bond.¹²⁵ This Pollentius' reasoning was another opportu nity for Augustine to defend the indissolubility in terms of sacramentality. The Bishop of Hippo did it in his second book with the same tide as the first one. Both books, written between 419 and 420, can serve as a comprehen sive view on the Augustine's doctrine on divorce.

According to St. Augustine, to equate spiritual death to physical death is absurd. The Apostle teaches that only the physical death of one of the consorts liberates them from the conjugal bond. Marriage does not cease by adultery just as baptism does not cease by excommunication.¹²⁶ Using another parallel however, Augustine distinguishes between physical and spiritual adultery. By the latter he understood the case when a Christian had defected from the faith by apostasy or heresy.¹²⁷

Augustine admits that marital infidelity, physical or spiritual, is the only sufficient and legal reason for living apart from one's partner. In his second book of De conjugiis adulterinis Augustine wrote that a spouse may be dismissed on grounds of adultery. But their first bond remains and excludes a remarriage. That is why a man is guilty of adultery if he marries a woman even if she has been dismissed for her infidelity.¹²⁸

Alluding to Paul's words, St. Augustine stresses that forgiveness and reconciliation are the Christian ways to solve marital problems. They are better solutions than divorce. The ultimate means is separation with subsequent continence, that is to stay unmarried.¹²⁹ Regarding abstinence from conjugal living together, he adds that it does not give a reason for dissolution of the marriage bond: «It would be wrong to say that the bond of marriage is broken for those people who agree to abstain altogether from the use of carnal concupiscence».¹³⁰ An examination of Augustine's teaching leads to the conclusion that Augustine, as the tireless defender of the indissolubility of Christian marriage, was strongly convinced that Jesus had allowed separation but not commanded it.

¹⁰⁹ The works in which Augustine touched marriage and divorce are (in chronological order): De sermone Domini in monte secundum Mattheum (393), De bono coniugali (401), De genesi ad literam (414), De nuptiis et concupicentia (418), De coniugiis adulterinis (420).

¹¹⁰ «Hoc autem tripartitum est: fides, proles, sacramentum. In fide attenditur ne praeter vinculum conjugale, cum altera vel altero concumbatur; in prole, ut amanter suscipiatur, benigne nutriatur, religiose educetur; in sacramento autem, ut conjugium non separetur, et dimissus aut dimissa nec causa prolis alteri conjungafur. Haec est tamquam regula nuptiarum, quae vel naturae decoratur fecunditas, vel incontinentiae regitur pravitas». St. Augustine, De genesi ad lilleram, Lib. 9, cap. 7, n. 12, in PL 34, 397.

«Haec omnia bona sunt, propter quae nuptiae bonae sunt: proles, fides, sacramentum». ID., De bono coniugali, cap. 24, n. 32, in PL 40, 394.

¹¹¹ «Hujus autem fidei violatio dicitur adulterium, cum vel propriae libidinis instinctu, vel alienae consensu, cum altero vel altera contra pactu conjugale concumbitur». St. Augustine, De bono coniugali, cap. 4, n. 4, in PL 40, 376; trans. 7FC XXVII, 13.

¹¹² «Semel autem initum connubium in civitate Dei nostri, ubi etiam ex prima duorum hominum copula quoddam sacramentum nuptiae gerunt, nullo modo potest nisi alicujus eorum morte dissolvi. Manet enim vinculum nuptiarum, etiamsi proles, cujus causa initum est, manifesta sterilitate non subsequatur: ita ut jam scientibus conjugibus non se filios habituros, separare se tamen vel ipsa causa filiorum atque aliis copulare non liceat». ST. Augustine, De bono coniugali, cap. 15, in PL 40, 385; trans. TFC XXVII, 31; See also Id. De nuptiis el concupiscentia. Lib. 1, cap. 10, in PL 44, 420.

¹¹³ «Usque adeo foedus illud initum nuptiale cujusdam sacramenti res est, ut nec ipsa separatione irritum fiat: quandoquidem vivente viro, et a quo relicta est, moechatur, si alteri nupserit; et tlle hujus mali causa est qui reliquit». ST. AUGUSTINE, De bono coniugali, cap. 7, in PL 40, 377.

¹¹⁴ See E. SCHILLEBEECKX, Marriage, 285.

¹¹⁵ See A. GarcIa Y GarcIa, «La indisolubilidad», 120.

¹¹⁶ «Dicit Apostolus: "Viri diligite uxores vestras sicut Christus dilexit Ecclesiam". Huius procul dubio sacramenti res est, ut mas et femina connubio copulati quamdiu vivunt inseparabiliter perseverent, nec liceat excepta causa fornicationis, a conjuge conjugem dirimi». St. Augustine, De nuptiis et concupiscentia, Lib. 1, cap. 10, n. 11, in PL 44, 420.

¹¹⁷ «Quomodo autem viro possit esse licentia ducendae alterius, si adulteram reliquerit, cum mulieri non sit nubendi alteri, si adulterum reliquerit, non video». ST. AUOUSTTNE, De bono coniugali, cap. 7, in PL 40, 378.

¹¹⁸ «Ita manet inter viventes quiddam conjugale, quod nec separatio nec eum altero copulatio possit auferre. Manet autem ad noxam criminis, non ad vinculum foederis: sicut apostatae anima, velut de conjugio Christi recedens, etiam fide perdita, sacramentum fidei non amittit quod lavacro regenerationis accepit». ST. AUGUSTINE, De nuptiis et concupiscentia, Lib. 1, cap. 10, 1 1, in PL 44, 420.

¹¹⁹ «etiam in sanctitate Sacramenti, per quam nefas est etiam repudio discedentem alteri nubere, dum vir ejus vivit, nec saltem ipsa causa pariendi; quae cum sola sit qua nuptiae fiunt, nec ea re non subsequente propter quam fiunt solvitur vinculum nuptiale nisi conjugis morte. Quemadmodum si fiat ordinatio cleri ad plebem congregandam, etiamsi plebis congregatio non subsequatur, manet tamen in illis ordinatis Sacramentum ordinationis; et si aliqua culpa quisquam ab officio removeatur, sacramento Domini semel imposito non carebit, quamvis ad judicium permanente». ST. AUGUSTINE, De bono coniugali, cap. 24, 32, in PL 40, 394; See P. Pourrat, Theology of the Sacraments, 65.

¹²⁰ See St. Augustine, De miptiis et concupiscentia, Lib. 1, cap. 10, in PL 44, 420.

¹²¹ «Si ergo similis forma est, non oportet, intelligi licere mulieri virum dimittere, nisi causa fornicationis, sicut et viro». St. Augustine, De sermone Domini, Lib. 1, cap. 16, 43, in PL 34, 1251.

¹²² «Dominus ergo ad illud confirmandum ut non facile dimittatur uxor, solam causam fornicationis excepit: caeteras vero universas molestias, si quae exstiterint, jubet pro fide conjugali et pro castitate fortiter sustineri; et moechum dicit etiam virum qui eam duxerit, quae soluta est a viro». St. Augustine, De sermone Domini, Lib. 1, cap. 14, 39, in PL 34, 1248.

Another his text reads as follows: «Verum hoc interest, quod nos, quando conjuges ambo christiani sunt, mulieri, si a viro fornicante discesserit, dicimus non licere alteri nubere, a viro autem non fornicante non licere omnino discedere». Id., De conjugiis adulterinis, Lib. 1, cap. 6, 6, in PL 40, 455.

¹²³ It is unknown who was exactly Pollentius. Augustine calls him frater dilectissime what gives suggestion that he was not a lay man but a cleric or religious. See M. PALMIERI, «Introduzione», 223.

¹²⁹ See ST. AUGUSTINE, De conjugiis adulterinis, Lib. 2, cap. 6-9, in PL 40, 473-476.

¹³⁰ «Quibus vero placuerit ex consensu ab usu carnalis concupiscentiae in perpetuum continere, absit ut inter illos vinculum coniugale rumpatur». St. Augustine, De nvptiis et concupiscentia, Lib. 1, cap. 11, 12, in PL 44, 420.

2.2 The legislation of early provincial councils

During the post-Nicene period there was no centralized Church structure. The relationships between bishops and their collegiality were strengthened by councils which were held in various ecclesiastical territories.¹³¹ There were councils which repeatedly issued directives affirming the indissolubility and condemning divorce and remarriage. Since the fifth century, the Church has insisted on its right to intervene in the separation of the spouses. The canons issued were an attempt to counteract civil legislation and step by step influenced the civil authorities.¹³²

The North African bishops expressed their teaching on divorce at the Eleventh Council of Carthage (407), in which Bishop Augustine played a significant role. Canon 8, relying on the teaching of the Gospel and the First Letter to Corinthians, deals equally with men and women. In the case of marital crisis the conciliar fathers urged a reconciliation or if this was impossible, the spouses must remain single. Neither of the divorcees may be married to someone else, because despite their separation the marital bond remains intact. Those who break this conciliar disposal had to do penance.

We decree that, according to the evangelical and apostolical discipline, neither the husband dismissed by his wife nor the wife dismissed by her husband may marry another, but each must either remain single or be reconciled to the other. If they disobey this law, then they must do penance. Application must be made for the promulgation of an imperial law on this matter.¹³³

The rejection of divorce with remarriage is clear. And further, the conciliar fathers demanded for their canon the force of imperial law.

Another African provincial council was held in Milevis (416). There is no documentation of this council except the conciliar letter to the Roman Pontiff Innocent I. Since the obvious method at that time was to read the documents from the previous council, it may be supposed with some certainty that the decrees of Carthage were known to the conciliar fathers and that they repeated them in their letter to the pope.¹³⁴

French bishops met at the Council of Angers (453) and in Canon 6 confirmed the doctrine of the indissolubility of marriage and the disciplinary practice of exclusion from communion for those living in irregular unions. The canon says that while such unions may be called marriages, they are not. Those who were married to another person were considered aliens with regard to sacramental life.¹³⁵

The earliest surviving document concerning ecclesiastical discipline in Ireland was born out by the Council of Hibernia held about 456 under the presidency of St. Patrick.¹³⁶ Canon 19 of the circular letter to the clergy of Ireland affirms that the termination of common life and a subsequent union does not destroy the marriage bond. Those who dismiss their partners and take another one are to be punished with a severe penalty. «A Christian woman who has taken a man in honorable marriage and afterward deserts the same and gives herself to an adulterer, she who does this shall be excommu- nicated».¹³⁷ Canon 22 extended this also to those parents who accepted the second man's dowry, that is, agreed with the remarriage of their daughter.¹³⁸

The decree of the Council of Vannes (465) in France provides good evidence that the ecclesiastical authorities of Tours' province has judged the marital cases. Its second canon calls attention to the observance of proce dural norms in separation cases. However, the precise procedure is not known except for a duty to present some proof of adultery. The violators of this conciliar norm who arbitrarily left their partners and took others were censured by exclusion from sacramental communion.¹³⁹ The insertion of the Matthean clause in this canon cannot be taken as permission to remarry after a divorce because of adultery, but is a reminder of the only reason for which marital separation is possible.¹⁴⁰

The Council of Agde (506) is also of special importance. The bishops of France wanted to end the abusive practice of those who accused their partners of adultery in order to dismiss them. Canon 25 required an official hearing of the marriage cases by ecclesiastical authority. The parties were to present their case to the provincial bishop and to accept his decision. This fact is a witness to the exercise of judicial authority by bishops and its recognition in the civil forum. As far as the grounds of legitimate separation are concerned, they are mentioned under the heading culpa graviore, which indicates also other unspecified grounds and not necessarily only adultery. Offenses against this norm were punished by exclusion from the Christian assembly.¹⁴¹

The Council of Hertford (673) was the national assembly of British bishops under the presidency of Archbishop Theodore of Canterbury. Quoting the Matthean text together with the pertinent passage from the First Letter to the Corinthians, they retained the traditional teaching that allows only separation in the case of adultery with no permission to remarry. Every one has to have a legally recognized marriage. The council condemned divorce and remarriage stating that one who remarries is unacceptable as a Christian.¹⁴²

The Spanish bishops tried to reform the abuses against marriage at their twelfth Council of Toledo (681). They felt called upon to decree that Christian marriage is absolutely indissoluble remembering Jesus' words against the dismissal of one's wife except for unchastity. Anyone who divorces his wife for reasons other than adultery is to be excluded from communion until the restoration of common life.¹⁴³

¹³¹ Obviously the most important were ecumenical councils, but these solved more serious problems of Church doctrine and organization and did not produce legislation on problems of the suspension of conjugal cohabitation. On the other hand, the provincial synods were connected more with the everyday reality of ordinary people. See H. HESS, «The Early Expression», 31-32.

¹³² See B. BlONDl, Il diritto Romano cristiano. III, 169; F.G. Morrisey, «The Current Status», 49.

¹³³ «Placuit, ut secundum evangelicam et apostolicam disciplinary neque dimissus ab uxore, neque dimissa a marito, alteri coniungatur; sed ita maneat, aut sibimet reconcil- ientur: quod si contempserint, ad poenitentiam redigantur. In qua causa legem imperialem petendum est promulgari». Concilium Carthaginese XI, can. 102, in Mansi 3, 806; trans. A.J. Bevilacqua, «The History», 290. This canon was incorrectly attributed to the Council of Milevis (416). See C.J. HEFELE - E. LecleRCQ, Histoire des Conciles, I, 158.184; F. Delpini, Indissolubility 40.

¹³⁴ «Placuit, ut secundum evangelicam et apostolicam disciplinam neque dimissus ab uxore, neque dimissa a marito alteri coniungatur, sed ita maneat, aut sibimet reconcilietur. Quod si contempserint, ad penitenciam redignatur». Concilium Milevitanum II, can. 17, in Mansi 4, 331.

¹³⁵ «Hi quoque qui alienis uxoribus, superstitibus ipsarum maritis, nomine coniugii abutuntur, a communione habeantur extranei». Concilium Andegavense, can. 6, in Mansi 7, 901; BCA II, 138. 136 This provincial council is known also as the First Synod of St. Patrick. See L. BlELER, ed.. The Irish Penitentials, 2-3.

¹³⁷ «Mulier Christiana quae accepent virum honestis nuptiis, et postmodum discesserit a primo, et junxerit se adulterio, quae haec fecit excommunionis sit». Synodus Sancti PATRICK, can. 19, in Mansi 6, 519; trans. L. Bieler, ed., The Irish Penitentials, 57.

¹³⁸ «Si quis tradiderit filiam suam viro honestis nuptiis, et amaverit alium, et consentit filiae suae, et acceperit dotem, ambo ab ecclesia excludantur». Synodus Sancti Patricii, can. 22, in Mansi 6, 516; See L. Bieler, ed., The Irish Penitentials, 57.

¹³⁹ «Eos quoque, qui relictis uxoribus suis, sicut in evangel 10 dicitur, excepta causa fornicationis, sine adulterii probatione alias duxerint, statuimus a communione similiter arcendos, ne per indulgentiam nostram praetermissa peccata alios ad licentiam erroris invitent». Concilium Veneticum, can. 2, in Mansi 7, 953; BCA II, 143.

¹⁴⁰ This result is supported by the proper intent and context of this canon. See G.H. Joyce, Christian Marriage, 323-324; A.J. Bevilacqua, «The History», 292.

¹⁴¹ «Hi vero saeculares qui conjugale consortium culpa graviore dimittunt vel etiam dimiserunt, et nullas causas discidii probabiliter proponentes, propterea sua matnmonia dimittunt, ut aut illicita, aut aliena praesumant, si antequam apud episcopos compro- vinciales discidii causas dixerint, et prius uxores, quam judicio damnetur, abjecennt, a communione ecclesiae, et sancto populi coetu, pro eo quod fidem et conjugia maculant, excludantur». Concilium Agathense, can. 25, in Mansi 8, 329; BCA II, 151.

¹⁴² «Pro conjugiis, ut nulli liceat nisi legitimum habere connubium. Nullus incestum faciat, nullus conjugem propriam, nisi, ut sanctum evangelium docet, fornicationis causa, relinquat. Quod si quisquam propriam expulerit conjugem legitimo sibi matrimonio conjunctam, si Christianus esse recte voluerit, nulli alteri copuletur, sed ita permaneat, aut propriae reconcilietur conjugi» Concilium Herudfordense, can. 10, in Mansi 11, 130; BCA 11,310.

¹⁴³ «Praeceptum Domini est, ut excepta causa fornicationis uxor a viro dimitti non debeat. Et ideo quicumque citra culpam criminis praedicti, uxorem suam quacumque occasione reliquerit, quia quod Deus iunxit ille separare disposuit, tamdiu ab ecclesiastica communione privatus et coetu omnium Christianorum maneat alienus, quamdiu et ad societatem relictae conjugis redeat, et partem sui corporis honesta lege conjugii sinceriter amplectatur et foveat. Hi tamen, qui jam admoniti a sacerdote semel et bis terque ut corrigantur, ad tori sui conjugii noluerunt redire consortium, ipsi se suis meritis et a palatinae dignitatis officio separabunt, et insuper generosae dignitatis testimonium, quamdiu in culpa fuerint, amissuri sunt, quia carnem suam discidii jugulo tradidetunt». CONCILIUM Toletanum XII, can. 8, in Mansi 11, 1034-1035; BCA II, 328; See also Collcctio canonum S. hidoro, in PL 84, 476

2.3 The teaching and activity of the Roman Pontiffs

From its very beginning the Church has been conscious of having legislative power over its members (Acts 15,28-29; 16,4). It has also claimed its independence from the civil power and made a clear distinction and separation of civil and ecclesiastical powers. Ossius, bishop of Cordoba, advised Emperor Constantine I not to interfere in ecclesiastical matters but rather to learn from the Church because God has committed the Empire to him, but the Church has been entrusted to the bishops.¹⁴⁴ The same Emperor decreed that recourse to the bishop should be recognized by the state.¹⁴⁵ The special position always has had the bishop of Rome as the supreme legisla tor, judge and pastor of the universal Church. He exercised ecclesiastical government by various catechetical, pastoral and disciplinary means in relation to the faith and morals. Thus, for example, Pope St. Callistus (218- 223)¹⁴⁶ had conceded equal matrimonial rights to a free person and to a slave and permitted marriages between them that were not in conformity with the Roman Law, which recognized only the status of concubinage for the union between a free Roman and a slave.¹⁴⁷

At the close of the fourth century there is more evidence about the special position of the Roman See in determining of the procedure to be followed in treating marital issues. The bishops from various provinces instinctively and directly turned to the pope for his advice and guidance on doctrinal and disciplinary points. The cases submitted were decided by means of decretals. The popes also used correspondence to settle points of general discipline. Their answers were more practical than doctrinal.

Probably the first known pronouncement of the Roman Pontiff on marital separation comes from Pope St. Siricius (384-399).¹⁴⁸ Replying to a query of Himerius, Bishop of Tarragona in Spain, whether a divorce with remarriage is possible in the case of a non-consummated marriage, the pope replied that the parties must abstain from another marriage. He considered remarriage a sacrilege. In addition, he explicitly mentioned the ecclesiastical ceremony that had been established as the entrance to marital life.¹⁴⁹

St. Innocent I (401-417) was the Pontiff at the time of the collapse of Roman imperial power. The indissolubility of Christian marriage and the prohibition of all remarriages while the partner was alive found their expres sion in his genuine official reply to Exuperius, Bishop of Toulouse. The pope applied the Synoptic tradition to divorcing and remarrying Christians. If a husband dismisses his wife and enters into a new union while his legal wife is alive, he is to be regarded as adulterer and put under canonical penalty. The woman, with whom he is now living, is also guilty of adultery.¹⁵⁰

Another letter of the Pontiff Innocent I, addressed to a Roman official, Probus, relates to the marriage case of Ursa and Fortunius. Their common life had been impeded by the captivity of Ursa. According to Roman civil law, such disruption of marital life also produced a dissolution of the mar riage bond and a right to remarry. And indeed, Fortunius, had formed a new union with Restituta. Later his legal wife Ursa was liberated, returned home, and she found that her husband had remarried. The whole case was introduced to the pope by Ursa who vindicated her title to an existing marriage. Innocent communicated his response to Probus, whose responsibi lity it was to carry it out. The pope had decided that Fortunius' second union was not a true marriage, because his first wife Ursa was still living and «had never been cast out by divorce». These last words might give the impression that remarriage would be permissible if it would follow after a divorce.¹⁵¹

One of the possible explanations is that if the papal decision had to have effect also on the civil forum and to be executed by the civil officials, it had to contain the civil reasons for the decision.¹⁵² Another interpretation solves the problematic phrase by arguing that it is an additional argument against Fortunius, who had not presented any basis for lawful divorce. «The implication that Innocent would have acted differently if he had shown cause for divorce goes beyond a proper reading of the document».¹⁵³ In whatever way Innocent's words are explained, Innocent's orthodoxy is amply evident from his letter to Victricius of Rouen, in which he clearly states that only death is the end of marriage, and so remarriage during the lifetime of a previous partner is clearly excluded.¹⁵⁴

Another Roman Pontiff who declared his mind on this subject was St. Leo I (440-461). His reply was stimulated by the inquiry of Bishop Nicetas of Aquileia to the Holy See about a case similar to that of Ursa. Some marriages were disrupted during war, because the husbands had been carried into captivity. The prolonged absence of these men had led their wives to believe that their husbands were killed or would never be released from their captivity. Those wives entered another union. However, a difficult and complicated situation arose when some of those who were considered dead had returned home. In his answer, based on two Scriptural texts, Pope Leo the Great first emphasized that «the unions of their lawful marriages should be restored and [...] each should have what he lawfully had».¹⁵⁵ Therefore if the husband is in fact alive, the second union cannot be a real marriage. Thus remarried women should terminate their second unions and go back to their legal husbands. The pope added that those women and their illegal husbands were not to be judged guilty. If some of those women would not return to their lawful husbands and continued to live with their second husbands, they were to be excommunicated.

The accounts of Pope Innocent's and Leo's judgments indicate that the bishop of Rome heard divorce cases, which were decided according to both religious and civil effects. His decision was final and usually it was communicated to the civil authorities for its execution.¹⁵⁶

Pope Gregory the Great (590-604) is presented by historians as the real «pastor of souls committed to his care».¹⁵⁷ The fact that he was born as a Roman, and before his election to the papacy had served as prefect of the City of Rome enabled him to know the ordinary life of the Romans personally. This is why he was very aware of the fact that Jesus' teaching was contrary to the current civil law.¹⁵⁸ Pope Gregory clearly affirmed the doctrine of the indissolubility of Christian marriage in his letter to Theotista, the sister of Emperor Mauritius, written in 601. At that time entry into monastic life was sometimes considered as a sufficient reason to terminate conjugal living. Some Christians had begun to assert that the religious life dissolves a marriage. Pope Gregory, quoting Matthean text on marriage, teaches that the union may not be legally dissolved for the sake of religion. Those who are married cannot make a unilateral decision to enter into the monastery, because man and wife are one flesh, each having power over the other's body. If one of the spouses wants to live monastic life, mutual consent is needed, because the other party remaining in the world must lead a life of continence.¹⁵⁹

The concrete case of Agathosa is dealt with in another papal letter written to Adrian, a notary of Palermo. Agathosa's husband had entered the monastic life against her will. The case was presented to Pope Gregory who ordered its very careful examination. He ruled that if Agathosa did not give cause for her husband to sever conjugal living because of fornication or if she did not give her permission for his conversion to monastery he must return to her and renew the common conjugal life. The pope writes as follows:

If, indeed, it is none of these, [...] we wish you to return her husband to her even if he has already been tonsured, dismissing all excuses, because although the secular law orders that a marriage can be dissolved for the sake of conversion, even if one party is unhappy, nevertheless the divine law does not permit this to happen. Except for fornication it in no way allows a husband to dismiss the wife, because after the consummation of marriage husband and wife are made one body, which cannot be partly converted and partly remain in this world.¹⁶⁰

According to Gregory the only cause excusing justifying unilateral termination of conjugal living is marital infidelity. To dismiss means only separation but not the permission to remarriage. Gregory's answer testifies about the discrepancy between the civil and ecclesiastical law in this matter. Finally, the good of both marital parties should be safeguarded.

¹⁴⁴ «Desine, queso te, et memento te mortalem hominem esse: time judicii diem, teque ipse innoxium ad eam diem custodias. Ne te rebus misceas ecclesiasticis; nec nobis his de rebus praecepta mandes; sed a nobis potius haec ediscas. Tibi Deus imperium tradidit, nobis ecclesiastica concredidit». St. Athanasius of Alexandria, Historia Arianorum, 44, in PG 25, 746.

¹⁴⁵ See Codex Theodosianus, 1,27,1-2; J. Gaudemet, L'iglise dans I 'empire Romain, 231-240.

¹⁴⁶ The dates of the Pontificates in this work are taken from Annuario Pontificio per I 'Anno 1997, Citta del Vaticano 1997.

¹⁴⁷ See ORIGEN, Philosophumena, Lib. 9, 12, in PG 16, 3385.

¹⁴⁸ It is debated whether any papal decretals where issued before Pope Siricius. See J.E. Lynch, «Some Landmarks», 150.

¹⁴⁹ «Nemini licet alter ius sponsam uxorem ducere. De coniugali autem relatione requisisti, si desponsatam alii puellam, alter in matrimonium possit accipere. Hoc ne fiat modis omnibus inhibemus: quia illa benedictio, quam nupturae sacerdos imponit, apud fideles cuiusdam sacrilegii instar est, si ulla transgressione violetur». St. SIRICIUS, Ep. 1 Directa ad decessorem ad Himerium episc. Tarraconensem, cap. 4, in PL 13, 1136- 1137.

¹⁵⁰ «De his etiam requisivit dilectio tua, qui interveniente repudio alii se matrimonio copularunt Quos in utraque parte adulteros esse manifestum est. Qui vera vel uxore vivente, quamvis dissociatum videatur esse conjugium, ad aliam copulam festinarunt, neque possunt adulteri non videri, intantum, ut etiam hae personae, quibus tales conjunctae sunt, etiam ipsae adulterium commisisse videantur, secundum illud quod legimus in Evangelio: Qui dimiserit uxorem suam, et duxerit aliam, moechatur; similiter et qui dimissam duxerit moechatur. Et ideo omnes a communione fidelium abstinendos». St. Innocent I, Ep. 6 Consulenti tibi ad Exsuperium, cap. 6, in PL 20, 500.

¹⁵¹ «Conturbatio procellae barbaricae facultati legum intulit casum. Nam bene constitute- matrimonio inter Fortunium et Ursam, captivitatis incursus fecerat naevum, nisi sancta religionis statuta providerent. Cum enim in captivitate praedicta Ursa mulier teneretur, aliud conjugium cum Restituta Fortunius memoratus inisse cognoscitur. Sed favore Domini reversa Ursa nos adiit, et nullo diffitente, uxorem se memorati perdocuit. Quare, domine fili merito illustris, statuimus, fide catholica suffragante, illud esse conjugium, quod erat primitus gratia divina fundatum; conventumque secundae mulieris, priore superstite, nec divortio ejecta, nullo pacto posse esse legitimum». St. Innocent I, Ep. 36 Conturbatio procellae ad Probum, in PL 20, 602-603.

Nautin holds opinion that the letter to Probus implicitly understands divorce as the open possibility for remarriage of innocent party. See P. Nauttn «Divorce», 43-44;

Contrary opinion is presented by another expert who interprets the papal words as a declaration of nullity. See H. Crouzel, Mariage, 202-203. 152 See G.H. JOYCE, Christian Marriage, 216; W. Kelly, Pope Gregory II, 55.

¹⁵³ J.T. Noonan, «Ursa's Case», 37.

¹⁵⁴ «Si enim de omnibus haec ratio custoditur, ut quaecumque vivente viro alteri nup- serit, habearur adultera, nec ei agendae poenitentiae licentia concedatur, nisi unus ex eis defunctus fuerit». St. INNOCENT I, Ep. 2 Etsi tibi ad Victricium, cap. 13, in PL 20, 479.

¹⁵⁵ «Sed quia novimus scriptum, quod a Deo jungitur mulier viro (Prov. 9,14), et iterum praeceptum agnovimus ut quod Deus junxit homo non separet (Matth. 19,6), necesse est ut legitimarum foedera nuptiarum redintegrata credamus, et remotis malis, quae hostilitas intulit, unicuique id quod legitime habuit reformetur, omnique studio procurandum est ut recipiat unusquisque quod proprium est. [...] Si autem aliquae mulieres ita posteriorum virorum amore sunt captae, ut malint his cohaerere quam ad legitimum redire consortium, merito sunt notandae: ita ut etiam ecclesiastica communione priventur: quae de re excusabili contaminationem criminis elegerunt, ostendentes sibimet pro sua incontinentia placuisse, quod justa remissio poterat expiare». ST. Leo I, Ep. 159 Regressus ad nos ad Nicetam, cap. 1 et 4, in PL 54, 1 136-1 137; also repeated in Dionysius ExiGUUS, Colleciio decretorum pontificium Romanorum, 42, in PL 67, 296. For the English translation of the whole text see J. GILCHRIST, The Collection, 224-225.

¹⁵⁶ See J.T. Noonan, «Novel 22», 80; A.J. BEVILACQUA, «The History», 282.

¹⁵⁷ R. Markus, «St. Gregory the Great», 347.

¹⁵⁸ See St. Gregory I, Ep. 48 Quisquis divina ad Urbicum, Registrum Epistolarum, Lib. 6, in PL 77, 833.

¹⁵⁹ «Si enim dicunt religionis causa coniugia debere dissolvi, sciendum est quia etsi hoc lex humana concessit, divina lex tamen prohibuit. [...] Proinde cum boni conjuges aut meritum augere desiderant, aut anteactae vitae culpas delere, ut se ad continentiam astringant, et meliorem vitam appetant, licet. Si vero continentiam quam vir appetit, uxor non sequitur, aut quam uxor appetit vir recusat, dividi conjugium non licet». ST. Gregory I, Ep. 45 Magnas omnipotenti Deo ad Theoctistam Patriciam, Registrum Epistolarum, Lib. 11, in PL 77, 1 161-1 162; See J. A. Alesandro, Gratian 's Notion, 24-28.

¹⁶⁰ «Si vera nihil horum est, [. ..] volumus ut maritum suum illi, vel si jam tonsuratus est, reddere omni debea excusatione cessante. Quia etsi mundana lex praecipit, conversionis gratia, utrolibet invito, posse solvi conjugium, divina hoc tamen lex fieri non permittit. Nam, excepta fornicationis causa, vir uxorem dimittere nulla ratione conceditur, quia postquam copulatione conjugii viri atque mulieris unum corpus efficitur, non potest ex parte converti, et ex parte in saeculo remanare». St. Gregory I, Ep. 50 Agathosa latrix ad Adrianum, Registrum Epistolarum, Lib. 11, in PL 77, 1169; The English text of both Gregory's letters in J. Gilchrist, The Collection, 225-227.